International Law - Klabbers, Sintesi del corso di Diritto Internazionale

Scarica International Law - Klabbers e più Sintesi del corso in PDF di Diritto Internazionale solo su Docsity! International Law, Jan Klabbers Semestre 2° 1 Indice INDICE ............................................................................................................................................. 1 1. THE SETTING OF INTERNATIONAL LAW ................................................................................................ 4 INTRODUCTION ........................................................................................................................ 4 THE SEVENTEENTH CENTURY ................................................................................................... 4 COLONIALISM ........................................................................................................................... 5 INTERNATIONAL LAW AND THE GLOBAL ECONOMY ............................................................... 5 THE INTERNATIONAL LEGAL SYSTEM ....................................................................................... 6 INTERNATIONAL LEGAL THEORIES ........................................................................................... 7 INTERNATIONAL LAW IN IN INTERNATIONAL RELATIONS THEORY ......................................... 7 GLOBALISATION, GLOB GOVERNANCE AND INTERNATIONAL LAW ......................................... 8 ETHICS AND INTERNATIONAL LAW .......................................................................................... 8 FINAL REMARKS: A CRITICAL PERSPECTIVE .............................................................................. 9 2. THE MAKING OF INTERNATIONAL LAW .............................................................................................. 10 INTRODUCTION ...................................................................................................................... 10 TWO SHIPS (OR PERHAPS THREE): LOTUS AND WIMBLEDON ............................................... 10 ARTICLE 38 STATUTE ICJ ......................................................................................................... 10 TREATIES ................................................................................................................................ 11 CUSTOMARY LAW .................................................................................................................. 11 A general practice ............................................................................................................................. 11 Accepted as law ................................................................................................................................ 12 THE METHOD OF CUSTOM: THE PAQUETE HABANA ............................................................. 12 CONSENT AND THE PERSISTENT OBJECTOR ........................................................................... 12 A NORMATIVE PROBLEM, OR TOWARDS MODERN CUSTOM ................................................ 13 ON LAW-BREAKING AND LAW-MAKING ................................................................................ 13 GENERAL PRINCIPLES OF LAW ............................................................................................... 13 UNILATERAL DECLARATIONS .................................................................................................. 14 OTHER POSSIBLE SOURCES AND THE RENEWAL OF SOURCES DOCTRINE ............................. 14 3. THE LAW OF TREATIES ................................................................................................................... 16 INTRODUCTION ...................................................................................................................... 16 TWO BASIC PRINCIPLES .......................................................................................................... 16 THE CONCEPT OF TREATY ...................................................................................................... 16 THE CONCLUSION OF TREATIES ............................................................................................. 17 RESERVATIONS ....................................................................................................................... 17 INTERPRETATION ................................................................................................................... 18 THE APPLICATION OF TREATIES ............................................................................................. 19 TREATY REVISION ................................................................................................................... 20 VALIDITY AND INVALIDITY ...................................................................................................... 20 TERMINATION AND SUSPENSION .......................................................................................... 21 4. THE SUBJECTS OF INTERNATIONAL LAW ............................................................................................ 23 INTRODUCTION ...................................................................................................................... 23 STATES .................................................................................................................................... 23 Population ......................................................................................................................................... 23 Territory ............................................................................................................................................ 23 Effective government ........................................................................................................................ 23 Capacity to enter into international relations ................................................................................... 24 RECOGNITION OF STATES (OR GOVERNMENTS) ............................................................................... 24 ACQUISITION OF TERRITORY .................................................................................................. 25 INTERNATIONALIZED TERRITORY ........................................................................................... 26 STATEHOOD: CONTINUITY AND CHANGE .............................................................................. 26 THE UNITED NATIONS ............................................................................................................ 27 5. JURISDICTION, POWERS AND IMMUNITIES. ........................................................................................ 29 INTRODUCTION ...................................................................................................................... 29 FIVE PRINCIPLES ..................................................................................................................... 29 International Law, Jan Klabbers Semestre 2° 2 Territoriality ...................................................................................................................................... 29 Nationality ......................................................................................................................................... 29 Protection ......................................................................................................................................... 29 Passive personality ............................................................................................................................ 29 Universality ....................................................................................................................................... 29 EXTRATERRITORIAL JURISDICTION ......................................................................................... 30 CONCURRENT JURISDICTION ................................................................................................. 30 THE POWER OF INTENATIONAL ORGANIZATIONS ................................................................. 30 SOVEREIGN IMMUNITIES ....................................................................................................... 31 HEAD OF STATE AND OTHTERS .............................................................................................. 31 DIPLOMATIC PRIVILEGES AND IMMUNITIES .......................................................................... 32 6. THE INDIVIDUAL IN INTERNATIONAL LAW .......................................................................................... 33 INTRODUCTION ...................................................................................................................... 33 FROM SLAVERY YO HUMAN RIGHTS ...................................................................................... 33 THE INSTITUTIONALIZATION OF HUMAN RIGHTS .................................................................. 33 THE APPLICATION OF HUMAN RIGHTS .................................................................................. 34 GROUP RIGHTS ....................................................................................................................... 34 NATIONALITY .......................................................................................................................... 35 THE RIGHT TO HAVE RIGHTS? STATELESS PERSON, REFUGEES AND MIGRANTS ................... 36 7. THE LAW OF RESPONSIBILITY .......................................................................................................... 38 INTRODUCTION ................................................................................................................................. 38 FROM CUSTOM TO CODIFICATION ........................................................................................ 38 STATE RESPONSIBILITY: TWO BASIC PRINCIPLES.................................................................... 38 Attribution ........................................................................................................................................ 38 Internationally wrongful act .............................................................................................................. 38 RESPONSIBILITY AND PRIVATE ACTS ...................................................................................... 39 CIRCUMSTANCES PRECLUDING WRONFULNESS .................................................................... 39 CONSEQUENCES OF RESPONSIBILITY ..................................................................................... 40 The third form of reparation may take is known as satisfaction and, as article 37 of the Article on State Responsibility holds, this “may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality”. ..................... 40 RESPONSIBLE TO WHOM ....................................................................................................... 40 REPSONSIBILITY OF INTERNATIONAL ORGANIZATIONS ......................................................... 40 INDIVIDUAL RESPONSIBILITY .................................................................................................. 41 SHARED RESPONSIBILITY? ...................................................................................................... 41 8. INTERNATIONAL COURTS AND TRIBUNALS ......................................................................................... 43 INTRODUCTION ...................................................................................................................... 43 SETTLING DISPUTES ................................................................................................................ 43 ARBITRATION ......................................................................................................................... 43 ADJUDICATION AND THE ICJ .................................................................................................. 43 JURISDICTION ......................................................................................................................... 44 All cases which the parties refer to it ................................................................................................ 45 All matters specially provided for in the Charter .............................................................................. 45 All matters specially provided for … in treaties and conventions in force ....................................... 45 The optional clause ........................................................................................................................... 45 Transferred jurisdiction ..................................................................................................................... 46 Forum prorogatum............................................................................................................................ 46 ADMISSIBILITY ........................................................................................................................ 46 Exhaustion of local remedies ............................................................................................................ 46 The nationality of complaints............................................................................................................ 47 INTERIM MEASURES OF PROTECTION .................................................................................... 47 COMPENSATION..................................................................................................................... 47 MISCELLANEOUS ISSUES ........................................................................................................ 47 Non-appearance ............................................................................................................................... 47 Third parties and the Court ............................................................................................................... 48 International Law, Jan Klabbers Semestre 2° 5 but the seventeenth century stands out for a variety of reasons. One of these is that for much the time preceding the seventeenth century, much of Europe tended to be organized in large empires. So, people did not think too much in terms of there being different political entities requiring a specific legal system to organize their relations. instead they tended to think of their empires as a single entity, with the consequence that law was largely conceptualized as internal. In 1648 the Peace of Westphalia was concluded to mark the end of the Thirty Years’ War. It was agreed to confirm and earlier arrangement emanating from 1555 Peace of Ausburg, to the effect that Europe would be divided into a number of territorial units, and that each of these units could decide for itself which religion to adopt: cuius regio eius religio. No outside interference was permitted, the result being the creation of sovereign states and, therewith, the birth of the modern state system. Another important event was the publication in 1625 of Hugo Grotius’ On the Law of War and Peace. Grotius had already been established, by then, as a leading intellectual, and he had been influential in shaping international law so as to uphold the freedom of the seas. It is sometimes suggested that Grotius is the founding father of international law, but such a claim is untenable. International law was not invented by a single person, but grew out of the interactions of states and the commentaries of learned observers. Second, it there were a single creator, then there are a few other serious contenders such as Suarez and Vitoria, who preceded Grotius, or Emeric de Vattel. Grotius main claim to fame resides in two circumstances. First, he forms a bridge between the classic naturalist way of looking at law and later positivist theorizing. His work encompassed elements of both viewpoints. Second, he may well have been the first to present a synthetic, comprehensive vision of international law. On the Law of War and Peace addresses not only on the law of armed conflicts and aggression, but also such matters as the binding force of treaties. COLONIALISM International law has been closely connected with imperialism and colonialism considering the struggle between European powers for influence elsewhere in the world. Freedoms theorized by Grotius presupposed, however, that certain rules were considered to be in place in order to regulate relations with ‘the natives’ in continents such as the Americas and Asia. Among these rules was the rule that territories found overseas were to be regarded as not having been subject to sovereignty – as territory belonging to no one (terra nullius). The original inhabitants were ignored. This required quite a balancing act, because these same original inhabitants were of the utmost importance when it came to making trading deals. They deemed capable of concluding contracts with Europeans, even contracts that would allow Europeans exclusive trading rights in valuable commodities such as pepper or nutmeg. For purposes of establishing sovereignty, the local population was often ignored; but for commercial purposes, their consent was deemed vital, at least as an argument to convince competing European powers. Much of the globe became the playground of the European powers and at some point the non- European world was literally divided between two of them, Portugal and Spain, and then also England and Holland emerged has maritime powers. In Mare Liberum, Grotius argued that the high seas were not terra nullius, but rather terra communis: common property, and thus not susceptible to occupation and sovereignty. This turn led to English protests, as the English insisted on exclusive rights to the high seas around the British isles, therewith effectively advocating the idea that states could generate maritime zones. It was only in the mid-seventeenth century that the Dutch came to accept – without formally acknowledging as much - the British position. International law also played a marked role when it came to slavery, firs by allowing it, and later, in the course of the nineteenth century by gradually arriving at a prohibition. INTERNATIONAL LAW AND THE GLOBAL ECONOMY International law is also connected to the economy. sometimes this is obvious: institutions such as the World Trade Organisation and the International Monetary Fund have been explicitly established to regulate aspects of economic life, and the various commodity arrangements so International Law, Jan Klabbers Semestre 2° 6 popular during the 1960s and the 1970s to regulate markets in products such as coffee or cocoa sprang from more or less the same impulse to regulate economic life. For much of the second part of the 20th century, the cases that would reach the ICJ tended to be those involving the precise limits of territorial ownership, either online or at sea. Whereas states were not all that interested in establishing the precise boundaries of their jurisdictions earlier, they became a lot keener when they realized that they might be sitting on huge oil reserves. This also marks the impotence of international law, though, at least on occasion; faced with the possibility of economic profit, states have been less than fully obedient to the classic non- intervention principle. As it could be economically beneficial to have friendly governments in place in states boasting oil reserves, so Western states mad sure to help put such friendly governments in place. The rule of law, as the great German sociologist Max Weber observed, served to create legal and economic certainty – its precise content was long considered less relevant. Giving effect to the idea of the rule of law, central topics to be studied in law schools were contract, property, civil procedure, torts and criminal law. The central topics in the international law emerging at the end of the nineteenth century included the law of treaties (  contract law), the law of responsibility (- tort law), acquisition of territory ( property) and dispute of settlement ( civil procedure). Only criminal law remained missing; in a world of sovereign equals without overarching authority it is difficult to think of criminal law to begin with. Now international law has also come to embrace a version of criminal law, albeit with a twist; in international criminal law, the actors are not states but individuals. This helps to perpetuate the idea that the legal order remains based on sovereign states; even though states cannot be imprisoned, there is no obstacle to sending individuals acting in the name of the state to prison. THE INTERNATIONAL LEGAL SYSTEM The absence of a single overarching authority is perhaps the most noteworthy characteristic of international law. International law can be seen as ‘positive morality’: it is more or less whining on states but as a matter of morality, not as a matter of law. How, indeed, does international law functions if it has no sovereign authority? That is a relevant question because international law seems to work reasonably well. Louis Henkin once said “almost all nations observe almost all principles of international law and almost of their obligations almost all of the time”. Various explanations are offered for this state of affairs. One is that since state themselves make international law, they have little incentive to break it. Related to this is the explanation of bureaucratic inertia. unless something dramatic happens, states will continue to do what they are used to doing and this typically helps strengthen international law. An important role is al played in international law by considerations of reciprocity. if states A and be are at war, and A starts to mistreat B’s citizens by violating the convention of Prisoners of Wat, then B will be highly temped to mistreat A’s citizens as well. Not all international law rests on this specific form of reciprocity, of course. It would be self-defeating to apply the same logic in cases of environmental damage or in respect of human rights, but that is not to deny that reciprocity can act as a powerful force in international law. A more recent explanation focuses on the role of legitimacy. A rule that is generally perceived as useful and that has been created in the proper manner may be seen as legitimate and thereby exercise a “compliance pull”. Another consideration which may help explain why international law is reasonably well complied with included included the idea that states are few in number and are attached to their territories; They cannot escape from each other, and it is decidedly costly to be a pariah state. They have to interact with each other, and when doing so, it helps to have a good reputation. In a social science parlance, there is a social sanction (so not a concrete sanction, is something that affect the reputation) in place, which helps to stimulate law-abiding behaviour, as it is ultimately beneficial to be a member of the international community in good standing. International Law, Jan Klabbers Semestre 2° 7 There is also the so-called retorsion. These are measures taken within the limits of the law and send the message that a state is not the best pleased with another’s actions. Typical examples would include recalling the ambassadors “for consultation”, ore breaking off of diplomatic relations altogether. Such activities send strong political messages, but do so without involving any breach of international obligations. It is something different to the situation that was called reprisal, nowadays most often called “countermeasures”. These are characterized by their own illegality, but this illegality is rendered lawful if they are done in response to an earlier wrongful act committed by other side. Other measures include self-defence and collective security action. INTERNATIONAL LEGAL THEORIES Even if it is accepted that international law is binding, the question arises of where that law comes from. Earlier thinkers tended to think that international law was natural law; it was given by God and could be recognized by those who adhered to the right religion. The problem with such a view turned out to be, that it was inherently subjective. Those of a different faith might reach different conclusions, and even people adhering to the same faith might come to different conclusions involving one and the same incident. By the nineteenth century the tide had turned a little, and naturalism had been replaced by a more scientific-looking positivist approach, riding on the coat-tails of the emerging social sciences. Positivism, starts from the position that law does not hover about in nature but is, instead, man made. The contents of law can be discovered by looking at what states actually do. This looked very sensible for a while, until people started to realize that if the law is what states do anyway, the it does not have much of a normative function. The critical revolution in international law has made it clear that international law is in actual fact constantly in search of a compromise between the naturalist and the positivist traditions. International law has to be both naturalist and positivist at the same time. This is now structurally impossible: international law is not capable of doing both at the same time. As a result, whenever someone invokes a naturalist argument, it is vulnerable to a positivist critique and vice versa. This discussion can go on forever and is, indeed, bound to go on forever, unless and until states reach some kind of agreement on what to do. Asking ICJ for an opinion will prove useless in the absence of any clear political accord. The consequence of all this, in Koskenniemi’s words, is that international law is eventually the continuation of politics. It offers a framework and vocabulary for the conduct of politics, but does not, and cannot, offer any solutions, precisely because it has to appeal both to justice and to every day practice at the same time: “modern international law is and elaborate framework for deferring substantive resolution elsewhere: into further procedure, interpretation, equity, context and so on. If international law is politics in disguise, then it follows that it can also be utilized for worthy causes. Karen Knop, for example, has studied how the right to self-determination has been used by disadvantaged groups in order to upgrade their status; Some developed a feminist outlook on international law, so aim to develop a Marxist perspective on international law. Few still believe in the fiction of neutral, politically innocent international law. What often matters in addition to the precise rules and principles of international law are the identity and mindset of the people taking decisions, and the conditions under which this political debate can take place. This has generated an interest among international lawyers in political philosophy, in particular in theories of deliberative democracy as well as the republican tradition, which is often traced back to Machiavelli. INTERNATIONAL LAW IN IN INTERNATIONAL RELATIONS THEORY Whether one thinks international law is useful or not often depends in the view one has if international politics generally. Self-proclaimed realists tend to view international law as largely irrelevant. For them, the international system is characterized by a struggle for power between states, and states will do anything to further their self-interest. International law either reflects state interests or it is violated. International Law, Jan Klabbers Semestre 2° 10 2. The making of international law INTRODUCTION In this chapter and the next the sources of international law will be discussed. The current chapter will concentrate on customary international law and general principles of law as well as sources doctrine generally, whereas the next chapter will be devoted to the law of treaties. Before continuing, however, it is imperative to firs sketch the basics of the system, and underline the role of consent. For while it may be the case that consent is of less importance nowadays that a century ago, it needs to be underlined that state consent is still of vital importance. TWO SHIPS (OR PERHAPS THREE): LOTUS AND WIMBLEDON On the second day of August 1926, the steamship Boz-Kourt (flying the Turkish flag) and Lotus (French) collided on the high seas, off the Turkish coast. The Boz-Kourt was cut in two, eight Turkish nationals died and the Turkish authorities started criminal proceedings against Lieutenant Demons, first officer of the Lotus, as well as the captain of the Boz-Kourt, Hassan Bey. Both were found guilty by the Criminal Court of Istanbul and sentenced to a fine and some months’ imprisonment. French auctoritas claimed that Turkey lacked the required jurisdiction to prosecute a foreigner for acts committed outside Turkish territory. The PCIJ in 1927 decided that Turkey had not violated international law because there was no rule prohibiting Turkey from starting proceedings against Lieutenant Demons. The Court here laid down the idea of international law as a permissive system; behaviour must be considered permitted unless and until it is prohibited. The alternative would have been to regard international law as a prohibitive system, where behaviour is only lawful if there is a rule that specifically allows it. The Court’s starting point is still valid enough, although it is possible to claim that there are exceptions; surely committing genocide is wrong, even for those states that have never accepted the prohibition of genocide. The Court equated a Turkish ship with Turkish territory in order to establish a jurisdictional link and it concluded too rapidly that in cases of collision the affected state could exercise jurisdiction. Later treaties on the law of the sea limit the penal jurisdiction of states to the flag state or the state nationality of the responsible officer, which suggests some dissatisfaction with the Court’s broad jurisdictional sweep in the Lotus case. The decision should not have come as surprise; four years earlier in its first ever contentious decision (the Wimbledon case), the PCIJ had strongly suggested the outlines of a positivist, permissive international legal order. After World War I the victorious powers negotiated the Versailles Treaty and then told Germany to consent it. Under the treaty the Kiel Canal was declared international waterway. When Germany refused access in 1921, to the steamer Wimbledon, some of those victorious powers started proceedings in the PCIJ. One of Germany’s counter-arguments was that Versailles Treaty was difficult to reconcile with sovereignty. The Court suggested that sovereignty and international law went hand in hand: “The right of entering into international engagements is an attribute of State sovereignty”. The Two cases, Lotus and Wimbledon, together establish that in a horizontal order of sovereign equals international law is by no means impossible; indeed, it is precisely because states are sovereign that they can make international law. In other words, international law is often deemed a positivist system un that rules are created by consent of the states themselves, and do not flow from elsewhere. International law does not stem from religion or from consideration of morality, but instead stems from acts of the system’s subjects. There are rules that exists even without consent and such rules are known as jus cogens rules: peremptory rules from which no derogation is permitted, and examples often mentioned in lude the prohibitions of genocide, torture, slavery and aggression. ARTICLE 38 STATUTE ICJ After World War II the PCIJ was replaced by the ICJ. Drafted to become part of the Statute of the PCIJ, in 1920, article 38 (1) ICJ provides as follows: International Law, Jan Klabbers Semestre 2° 11 The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: A. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states; B. International custom, as evidence of a general practice accepted as law; C. The general principles of law recognized by civilized nations; D. Subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. It is generally agreed that article 38 does not establish a rigid hierarchy of sources, but two elements of hierarchy can be seen in article 38. First, the reference to article 59 ICJ Statute further makes clear that judicial decisions have no precedent effect in international law; second, there is also a general agreement between international lawyers that general principles of law have as their main function the filling of gaps when there is neither an applicable treaty nor an applicable rule of customary international law. TREATIES If states want to make a deal, the only instrument at their disposal is the treaty. They can effectively only use the treaty form if the ambition is legislative nature. The only instrument available to set up an institution such as the UN is, again, the treaty. Hence, treaty has become the dominant source of international law. Treaties can be bilateral but also multilateral; they can be highly solemn and cast in language with biblical overtones, but also highly informal. What matters is that state express their consent to be bound: in this way, being bound by treaty can be reconciled with the starting point of state sovereignty. Rules on treaties have been codified in the 1969 Vienna conventio on the Law of Treaties (VCLT), which applies to treaties concluded between states only. A later Vienna convention was concluded in 1986 about treaties between international organizations, nut his has yet to enter into force. CUSTOMARY LAW All societies recognize that in certain circumstances, some practice can acquire the force of law. It may be easier to regard activities that people do any as law, instead of making written laws. Customary law as the advantage that precisely because is based on social practices, it is usually deeply engrained the everyday life of that society. In international law, customary law has traditionally a very important role. In the past much of the law was based on the customs of the members of the international society - states. The definition of customary law in article 38 ICJ provides two main requirements: there must be a general practice, and this general practice must be accepted as law, meaning it must be accompanied by opinion juris, a sense of legal obligation. A general practice It is difficult to say in abstract when a practice is general enough to award in the status of a rule of customary international law. There is the possibility of regional customary law. There may even be something like custom between two states only. International Law, Jan Klabbers Semestre 2° 12 About the time required, the ICJ found in 1969 that 2even without the passage of any considerable period, a very widespread and representative [practice] might suffice of itself. Furthermore, the number of instances of practice depends on the precise issue area. Another relevant question is whose practice is required. What matters in particular is that those states whose interests are especially affected by customary rule participate in its making. If this seems difficult to reconcile with sovereign equality, none the less given the very nature of custom as the normative reflection of practice, it could hardly be otherwise. It is still very difficult to say what exactly counts as practice. The evidence of customs are, and will remain, controversial. Accepted as law The requirement of opinion juris therewith plays the useful role of separating law from other normative control system, such as etiquette or morality, or of separating legally warranted behaviour from merely politically expedient behaviour. How the, to recognize opinion juris? Often the evidences of opinio juris are identical to those of state practice. THE METHOD OF CUSTOM: THE PAQUETE HABANA A good way to illustrate the identification of a rule of customary international law is and old decision in the Paquete Habana case. The Paquete Habana and the Lola were Cuban fishing vessels and, since Cuba during the Spanish-American war in 1898 was still ruled by Spain, seen by the USA as enemy ships. A US gunboat seized the vessels in 1898, after they had been at sea for nearly a month. They were sold by auction for the princely sums of $490 and $800. The original owners claimed that the YSA had no right to seize foreign fishing vessel and the case reached the US Supreme Court. The Court was able to cite orders by the English king Henry IV to the effect that fishing vessels were not to be seized in wartime. It also found similar decrees or orders from other countries. This was not just a matter of law on paper; the Supreme Court found that local courts would habitually apply the rule and exempt foreign fishing vessels from seizure. The Court also found some exceptions. France, for instance, at one point had withdrawn the exemption for fishing vessels, due to abuse by its enemies, but the overwhelming evidence of the practice investigated by the Court pointed the existence of a general practice, and thus a rule of customary international law. In the end, the Supreme Court concluded that the capture had been unlawful, and that the proceeds of the sale should be restored to the original owners, as well as costs and damages. The case is highly instructive for the methodology of the Supreme Court uses. First, it is noticeable that id does not separate practice from opinion juris; second, it is also useful to note the Court looks at the practice of various states but ate the same time, that the number of states is quite limited. CONSENT AND THE PERSISTENT OBJECTOR Since international law is supposed to be about sovereign states, customary international law too is said to rest on the consent of states. A state’s consent to custom is thought to be tacit so if a state notices tht a new rule of customary law is in the process of being created and it feels unable to accept it, it should make its opposition known. By objecting persistently, the state can ensure that it does not become bound. If many states object persistently they can prevent the rule from coming into being. The leading case about persistent objection is the 1951 Anglo-Norwegian Fisheries case. Norway increased the width of its maritime zones by measuring it not from the coast line but from some small rocks in front of the coast and some English fishermen were arrested for fishing in Norway’s territorial see. So the UK started proceedings before the ICJ. If Norway’s would have measured its maritime zone with the standard method it would result in the near total absence of any territorial sea, due to Norway’s curios coastline. Norway gad announced this to the world at large in various royal decrees and at various international meetings, and could thus claim a historic right to do so. The UK claimed that it was not aware of the International Law, Jan Klabbers Semestre 2° 15 Others have suggested that the question of whether something is law or not is really not all that relevant, and perhaps even smacks of “politics of definition”; whoever gets to define law puts himself in a position of authority. What matters, on this view, is not much whether something is law, but whether transgressions of norms provoke some kind of community reaction. The perspective becomes ex post facto. This may be useful for the social scientist looking to explain behaviour, but is less helpful to the lawyer, whose task is to facilitate, constrain and evaluate behaviour. The better view is to propose “presumption of binding force”; normative utterances should be presumed to give rise to law, unless and until the opposite can somehow be proven. This presumptive thesis will have the benefit of being workable and of allowing for participation by the relevant actors, whether they are states or not. It would seem that international courts have traditionally worked on the basis of this presumption, and continue to do so; they typically allow for commitments to be highly informal, and tend only to dismiss the legal force of instruments if those instruments are clearly not intended to give rise to rights or obligations. International Law, Jan Klabbers Semestre 2° 16 3. The law of treaties INTRODUCTION Over the time, a number of rules grew and crystalized concerning the making of treaties, their effects and application, their validity and their termination. These rules formed the basis of the drafting of the 1969 VCLT which has become the leading instrument on the law of treaties, even though it limits its scope to treaties concluded between states. The drafters of the 1969 VCLT made two important conceptual choices. One was almost natural; having been prepared within the International Law Commission (ILC) by four lawyers hailing from the UK and well versed in Anglo-Saxon contract law, the Vienna Convention almost naturally came to reflect a contractual outlook, rather than a more public-law-inspired outlook. This has important ramifications; some of its rules are very useful when treaties resemble contracts, but are less useful for those treaties that more closely resemble legislation – think of human rights treaties, or treaties for the protection of the natural environment. The second choice was that the drafters, instead of focusing on the substance of treaties (the treaty as obligation), concentrated on the form of treaties (the treaty as instrument) and this was a considered choice. An important consequence is that the VCLT says little about the consequences of a breach of obligations, this was left to the law on stat responsibility. It is not mandatory to submit to VCLT: states are free to depart from it by mutual agreement. It is sometimes difficult to argue that the Vienna Convention is “violated”; it may simply be the case that the parties have contracted out of the Vienna Convention’s rules. TWO BASIC PRINCIPLES The law of treaties is based on two foundation al principle: the first is that treaties need to be based on the free consent o states as discussed in the previous chapter. The second specifies that the freedom of states is not unlimited; once consent to be bound has been expressed and the treaty has entered into force, the treaty shall be kept by parties in good faith – pact sunt servanda, codified in article 26 VCLT. Even contrary domestic law, as article 27 VCLT makes clear, is not a valid excuse for failing to perform a treaty obligation, a least not under international law. THE CONCEPT OF TREATY The VCLT defines treaties as agreements in written form, concluded between states and governed by international law. The designation makes no legal differences, although the choice of a solemn label may indicate that such an agreement is deemed to be of great political significance. There is sometimes said to be an important exception though; according to some, the choice for the label “memorandum of understanding (MoU) would signify an intention not to be legally bound, and thus be of great legal relevance. The circumstance that treaties need to e in written form is peculiar to the Vienna Convention. The only really relevant requirement the is that treaties are only treaties if governed by international law. Traditionally, this was useful for delimiting treaties from instruments between stats governed by one or the other domestic legal system. This requirement can also be used to separate treaties from non-legally binding instruments such as political agreements, morally binding agreements, or “soft law” agreements. To above-mentioned MoUs come in. Designating an agreement as an MoU would manifest a mutual intention no to be legally bound but, instead, to be bound merely on the political or moral level. For government officials, it adds a useful tool to their toolbox, as the advantages of such MoUs would seem to include enhanced flexibility and, perhaps most of all, the possibility of circumventing domestic parliamentary participation in the conclusion of treaties. Few constitutions say anything at all about politically or morally binding agreements such as, possibly, MoUs. Hence, government official gain considerable freedom of action this way. Although the distinction between treaties and MoUs has not been approved by the ICJ. Quite contrary; the relevant case-law would seem to deny such a distinction. The practice of many states suggests that even though courts might disagree and there are theoretical and philosophical problems with thinking in terms of intending to create moral or political obligations, states conclude many agreements which they hold to be creative not of legal obligation, nut more flexible or moral obligations, this takes place in several ways. Sometimes it is International Law, Jan Klabbers Semestre 2° 17 though that MoUs are the result of conscious policy choices. Thus, on this line of reasoning, states can choose whether to cat their agreements in treaty form or in MoU form. They will do so, typically, on a cost-benefit analysis, weighing the benefits of flexibility against the cost of a less robust commitment. In other cases the non-binding claim may result from the circumstances of conclusion. Increasingly, agreements are concluded outside the regular diplomatic channels by civil servants and other who may not carry the required authorization (“full powers” – see below). All these norms and standards have in common that they are unequivocally cast in tradition treaty form; all of them also have in common that they exercise normative guidance, and one way to explain this is to point out that this normative guidance is not legal in nature and thus must stem from something else. Either way, it is undeniable that such “twilight” norms are increasingly being created, precisely because of the flexibility they seemingly offer. THE CONCLUSION OF TREATIES Treaties are concluded on behalf of states, but who can perform legally relevant acts? Obviously the head of state and also, for practical reasons, heads of government too. In article 7 the VCLT adds that also ambassadors and representatives to conferences or organizations have powers to bind state, albeit less far-reaching ones than heads of state and government and foreign ministers. Their powers are limited to negotiating with the states to which they are accredited. Others are supposed to present so-called full powers, documents emanating from the competent domestic authorities (usually the foreign ministry) specifying that the person concerned is empowered by his home state to participate in various acts relating to the conclusion of treaties. Sometimes the full powers may include authority to sign; in other cases it may be limited to negotiating. The two main ways of expressing consent to be bound by treaties are signature and ratification. Signature plays a double role; it can express consent to be bound in treaties that are considered of little political significance, but it is also often merely the first step towards ratification, signifying that agreement on a text is reached without expressing the stat’s consent to be bound. It used to be the case that signature involved a promise to ratify but nowadays a duty to ratify would be difficult to reconcile with democratic concerns. Nowadays the rue is that if a treaty remain silent, mere signature probably suffices. If and when a treaty provides for ratification, then this is “of vital importance”. But if no such provision is made, then the default rule would seem to be that signature suffices. Article 18 VCLT (known as the “interim obligation”) suggests that a state may not engage in behaviour which would “defeat the object and purpose” of treaty concerned. This does not amount to a full commitment just yet, for obviously ratification would then become a meaningless act. The interim obligation is one of provisions that works well with contractual arrangements, but less well with law-making treaties. Ex: signing a torture convention and quickly engaging in torture just before its entry into force cannot be said to change the balance of concessions; it cannot be said to “defeat the object and purpose” of the treaty. If anything, it underlines that the treaty is still necessary. RESERVATIONS The most important provisions of the VCLT are those dealing with reservations to treaties, unilateral acts by which individual states wish to modify or exclude part of the treaty. It remains up to the parties to a treaty to decide how to handle reservations. States can agree that no reservation is permitted or that they are allowed to some provisions but not to others. Problems may arise if the treaty remains silent on reservation. The question of whether a reservation is permissible Is referred to general international law and in practice this means that the regime of the VCLT is invoked. Before World War II the general rule was that states can make reservations to treaties, provide those reservations were accepted by all their treaty partners. Nowadays ICJ established that unless the parties themselves agreed otherwise, reservations to treaties should be deemed permissible as long as they are consistent with the object and purpose of the treaty. It might be argued that the Court was seduced by the simplicity of the situation before it (the decision was taken during International Law, Jan Klabbers Semestre 2° 20 There may be situations where the behaviour of two or more states creates a so-called objective regime, a regime that non-parties would be expected to respect even without their consent. This happen when states concerned create a regime of the greater good of mankind, and can thus legitimately expect others to honour their creation. TREATY REVISION There are many ways in which treaties may change over time. The most formal way is through amendment, and under the terminology of the VCLT (article 40) amendment by definition involves all parties to the original treaty. If only some parties are concerned with attempts to revise a regime, the convention speaks of a modification between those parties inter se. This is generally permitted as long as it does not deprive others of rights under the original version of the treaty concerned, and as long as it is compatible with the treat’s object and purpose. Amendment goes through different stages. First it must be proposed, then it may be adopted by majority rule and the final stage is the ratification. What happens if an amendment is indeed ratified by most parties but not by all? The situation differs for treaty to treaty. Some need the unanimity for amendments to enter into force, say that amendments enter into force for all parties, even though acceptance by a majority suffices. Yet others suggest that amendments only enter into force for the states that accept them. Many treaties change over time by means of less formal methods. Treaties are interpreted on a daily basis, and those interpretations may be subject to change. The net result is that even without forma aments or modification, treaties may become unrecognizable. To some extent this is a good thing, no doubt; it allows treaties to adapt themselves to changing circumstances. The drawback is that informal change is not conductive to stability, and may trample on the procedural guarantees written into the treaty. VALIDITY AND INVALIDITY The jus cogens provision of article 53 stipulates that a treaty can be void if there is a problem with its substance. Article 46 to 50 list factors that may invalidate a treaty, but need not to do per se; it is different with articles 51-3; if the circumstances mentioned there occur, the treaty will automatically be invalid. Here invalidity, in other words, operates by law. Article 46 ins of some interest, as it provides that in certain specific instances a violation of domestic treaty-making rules may end up in the invalidity of a treaty. Such a violation of domestic procedure “may not be invoked” if it concerns a rule of fundamental importance and if the violation was manifest. While “fundamental importance” probably means rules laid down in domestic constitutions, the definition of “manifest violation” is more problematic. A violation is manifest if it is objectively evident that the treaty partner, acting in good faith, should have known that the state concerned was violating its own domestic provisions. This will be rare, for the good reason that those domestic provisions are rarely clear enough even to lawyers well versed in those domestic system. Articles 51 e 52 deal with issues of somewhat “higher” politics. The basic thought is that treaties procured on the basis of coercion are void. Article 51 specifies the fairly unlikely situation of coercion of state representatives. Article 52 addresses the more interesting scenario of coercion of state. The standard example is, of course, a military invasion so as to procure consent. Article 52 is limited to military pressure, on the theory that if it were also to take economic or political pressure into account, there would be very few valid treaties left. To softer the blow, a declaration was attached to the Final Act of the VCLT holding that exercising economic and political pressure was to be condemned, but without this leading to a tangible legal consequences. A curios case is formed by peace treaties, such as the Treaty of Versailles, because they are by definition the result of coercion. So how does international law handle this sort of situation? The one answer international lawyers usually come up with relates to the legality of the was that gave rise to the peace treaty. If force is used in violation of the UN Charter (i.e. if the aggressor wins), it coercion and invalidity results; whereas if force is used in conformity with the UN Charter, the resulting peace treaty will not be regarded as having been concluded by means of coercion. International Law, Jan Klabbers Semestre 2° 21 The jus cogens rule; a treaty concluded in violation of a “peremptory norm” is void. Peremptory norms are norms tht are accepted as such by the international community of states as a whole. Obviously this creates a fairly high hurdle for the creation of peremptory norms. Some norms are universally accepted, but are not seen as peremptory; states are free to “contract out” of such norms. While unanimous acceptance is not required, acceptance by a fairly large number of states seems necessary; moreover, those states should represent all major ethical traditions. In fact, certain types of behaviour go against the international ordre public; international law should not enforce what are called “forbidden treaties”. Jus cogens is a controversial category and the ICJ, until recently, did its utmost to avoid even using the term, despite having several opportunities to do so. Only in 2006, in the Armed Activities case, did the Court fort the first time apply the concept when it describes genocide as being “most assuredly” prohibited as a matter of jus cogens. What is clear is that a treaty concluded in violation of such a norm will be void, in accordance with article 53 of the VCLT; but international law so far has not spelled out any other consequences. TERMINATION AND SUSPENSION While and invalid treaty is one that has no legal effects whatsoever, a terminated treaty is one whose legal effect have come to an end. This can happens when the parties agree that their treaty must come to and end; a treaty may also terminate by the operation of law. Suspension is a different phenomenon because it means the temporary deactivation of a regime. States can agree beforehand that the treaty will be of limited duration, and include an expiry clause. Or they can provide that the treaty will be terminated once the common object has been achieved. Other techniques include the replacements of an old treaty by a newer one between the same parties; the old one must be considered terminated. Article 59 of the VCLT also suggests that an older one can be terminated by a new agreement to terminate. There is even the possibility of desuetude but where a treaty is not applied simply because the circumstances for its application do not arise, the desuetude conclusion cannot nearly ad easily be drawn. Things may be different when the parties cannot agree on the desirability of termination a particular treaty. The VCLT offers three possible justifications for unilateral termination. The first of those is the classic contractual idea that violation by A means that B may be released from its obligations (inadimplenti non est adimplendum), but only a “material breach”, violations of provisions essential for the accomplishments of the treaty’s object and purpose. Hence, it is not the gravity of the breach that counts, but the importance of the provision breached. Article 60 paragraph 5 also takes the special positon of multilateral treaties into account. It suggests that if A violates a human rights treaty, thus violation does not give B or C a right to terminate the treaty, and rightly do so. By limiting itself to treaties of humanitarian character, it ends up suggesting that with other “law-making” treaties, this logic does not apply. Article 61 allows for termination upon a supervening impossibility of performance, and therewith performs much the same function as force majeure or Act of God clauses may do in contract law. The most spectacular way of terminating a treaty is by invoking a fundamental change of circumstances, the popular plaything of Realpolitiker from Bismarck to De Gaulle, and beyond. Courts have always been reluctant to apply it to the case before them. After all, doing so might open up a Pandora’s box; once article 62 has been applied, more and more cases will follow. This doctrine is also known as the rebus sic stantibus doctrine. The ICJ, for instance, has been very reluctant, typically applying the criteria for successful invocation with great restraint. Those criteria boil down the three important elements. First, the circumstances concerned must have been and essential basis of the parties’ consent; second, the change must have been unforeseen; and third, the change must “radically transform the extent of the obligations still to be performed under the treaty. There is one case where a court actually upheld and appeal to the rebus doctrine; the decision of the CJEU the the Racke case, in 1998. The issue was there the EU had lawfully suspended a free trade agreement with Yugoslavia upon the outbreak of civil war in that country. The Court found that indeed the EU had acted lawfully, fort the circumstances underlying the treaty had been peace International Law, Jan Klabbers Semestre 2° 22 and stable state institutions. Neither of these applied any longer, so it was no wonder that the Eu no longer saw “the point” of the treaty. International Law, Jan Klabbers Semestre 2° 25 that such unilateral declarations of independence are not unlawful under international law, but refrained from going any further. The break-up of Yugoslavia during the early 1990s has provided international lawyers with lots of material on statehood, recognition and state succession. In particular two developments stand out, both related to the Eu. First, in order to assist It in its policy formulation, the EU established the so- called Badinter Commission. This Commission issued a number of highly relevant opinions on issues such as state dissolution, the applicability of the right to self-determination and how this affects the earlier internal boundaries and state succession. These opinions, while not binding strictly speaking, have provided much impetus for the further development of international law. Second, in late 1991 the EU adopted a set of guidelines of recognition of the new states in Eastern Europe, which can be seen to have added considerably to the requirements for statehood or, at any rate, for legitimate statehood. The EU stipulated that new states should only be recognized if they respected existing boundaries, if they accepted disarmament commitments guaranteed the rights of minorities and displayed a commitment to democracy, the rule of law and human rights. The political relevance of the Eu guidelines seems to support the constitutive theory; a state should only be recognized if it meets with political and legal requirements held dear by existing stats. And yet the Badinter Commission itself started unequivocally, some two weeks before the guidelines were issued that “the effect of recognition…are purely declaratory”. ACQUISITION OF TERRITORY How do states acquire their territory? On this topic, international law owes much to the Roman law of property, as this body of law was dominant in Europe at a time when the European discovery voyages set off. A first mode of acquiring territory was discovery but it short lived, if only because the emergence of international relations started to put a premium on actual possession and effective government. This, in turn, was rendered necessary in order to protect the rights of foreign travellers, as arbiter Huber memorably claimed in his famous Island of Palmas. In this case at issue was sovereignty over an island located between the Philippines and Indonesia, a Dutch colony. When after the US- Spanish war the Philippines changed hand and became a US colony, a dispute arose over Palmas. The Spanish had discovered it and could thereby claim title, but the Dutch had actually occupied and administered it. At the “critical date” (the moment of cession in 1898) the law prescribed that discovery alone was not sufficient; the exercise of effective government was fare more important. Hence, Huber decided that title to the island rested with the Netherlands. In doing so Huber not only gave fresh impetus to the law on territory, but also to international law more generally. The idea that the relevant law was the law at the “critical date” presupposed that the law could develop. A once valid title could thus be superseded in light of a later events, and this stirred up quite a bit of controversy. It is not always obvious what the “critical date” in any given dispute is and much thus comes to depend on the sensibilities and inclinations of those who get to decide. The notion of effective government, emphasized by Huber in Palmas, owed much to two concepts borrowed from Roman law. Under occupation (occupation) someone assumes ownership over a good that was nt earlier subject to ownership. Under praescriptio (prescription) ownership is assumed despite rival claims. Both are basedon the exercise of authority over an extended period of time, accompanied by the will to do so (animus occupandi), and preferably uncontested. Currently the use of force is strongly prohibited under international law so military conquest in unlikely to result in title to territory. If occupation an prescription are potentially modes of territorial acquisition involving the use of force, more peaceful modes also exist. Historically of some importance is cession – one state handing over territory to another, usually in exchange for a sum of money or, on occasion, for another piece of territory. Peaceful as cession may be, it can non the less play a forceful role in oppression, as it did during the colonization of Africa in the late nineteenth century. In some cases territory was not sold, but rather leased (ex. Hong Kong). The basic idea with such a construction is that sovereignty is separated from the exercise of sovereign act. Such constructions have historically given rise to controversial situations. International Law, Jan Klabbers Semestre 2° 26 Another peaceful way of acquiring territory is to submit territorial disputes to adjudication and leave it to a court or arbitrator to decide. Many of the cases that reach the ICJ or international arbitral tribunals have to do with boundaries. INTERNATIONALIZED TERRITORY Political circumstances sometimes give rise to what may be referred to as internationalized territory; territory placed under the authority of a group of states acting together or under the authority of an international organization. A different manifestation is the regime concerning the Antarctic. While many states had made claims over parts of the Antarctic, in 1959 they came together and decided to administer the Antarctic together. The original twelve parties to the Antarctic Treaty decided to exclude other possibly interested states. Such construction create situations or regimes between groups of states which will affect others without their consent. STATEHOOD: CONTINUITY AND CHANGE Once a state exists, there is a very strong presumption that it will continue to exist. Most pertinently, the reduced effectiveness of governments does not affect it statehood. The presumption of continuity is extremely strong; if the ineffectiveness of government led to loss of statehood, then quite a few established states might be at risk. It is possible for statehood to change, and at least four methods of change can be discerned. First, secession, which main characteristic is that the old parent state continues to exist, and continues to do so under the same name and with the same legal identity, but with reduced territory. A second mode of state succession is decolonisation, that differs a bit from secession, mainly because former colonies are base elsewhere in the world and not contiguous with the metropolitan area. Third, states may merge or unite or be reunited. Finally, states may dissolve, as happened with Yugoslavia and URSS. Although URSS formally dissolved this is a particular situation because for practical reasons Russia is the legal continuation of URSS. It has proved very difficult to formulate general principles on the relation between succession and treaties. The most important attempt to do so is the Vienna Convention on Succession of States in Respect of Treaties, which aims to govern the effect of state succession on treaty relations. On one hand, there is much to be said for continuity of treaties. After all, in particular when it comes to human rights treaties, it would be rather awkward to hold that people are protected on Monday but no longer on Tuesday simply because a state succession has occurred. On the other hand, assuming the continuity of treaties would effectively mean that new states would be under legal obligations that those states never consented to. The 1978 Vienna Convention does not say all that much. Newly independent states may start their existence with a “clean slate”; under article 16, treaties do no devolve upon them merely because they were in force for the metropolitan state. Here the 1978 Convention pays tribute to decolonization, and aims to compensate, so to speak, former colonies for the injustices of colonialism. In cases of merger or unification, however, the presumption is that existing treaties continue to remain in force (article 32), unless the parties concerned agree on a different solution, and much the same applies to a separation under article 34. Importantly, state successions do not affect boundary treaties or “other territorial regimes”, according to articles 11 and 12, and the convention is without prejudice to questions arising from military occupation (article 40). The 1978 Vienna Convention has met the with little overt support in state practice, perhaps partly because its drafted were highly motivated by the injustices of colonialism at a time when colonialism had already come to an almost complete end; the drafting was memorably characterized by a prominent international lawyer as “looking back in anger”. The Convention entered into force in 1996. A succession of state not only affects treaty relation; it also affects such matters as a state’s property, its debts and its archives, something of great political relevance given the possibility that these archives may include the records of nasty secret services. On this topic, a separate convention was concluded in 1983, but this has yet to enter into force. International Law, Jan Klabbers Semestre 2° 27 Obviously, once a state ceases to exist, so does its nationality; what the happens to citizens of a state that becomes subject to a succession? The ILC and the UN has adopted a number of articles on the topic but no general multilateral conversion exists as yet. The main political impetus is to prevent statelessness form occurring; as a result, the guiding presumption, laid down in article 5, is that individuals will have the nationality of the state on whose territory they habitually reside. This hardly solves all problems though. In particular, the Soviet practice of russification has given rise to quit a backlash, in particular in the Baltic states. These states claimed to have been illegally annexed for some fifty years; the former Soviet soldiers were seen as occupying forces and therefore where to be sent back to Russia rather than given local nationality, and acquisition of nationality was made dependent on command of the local language. Finally, membership is also affected by a succession of states. Once a state ceases to exists so does its membership of an international organization. The main general exception here concerns the financial institutions; otherwise a heavily indebted member state could decide to dissolve and thereby escape liability. INTERNATIONAL ORGANIZTIONS It is generally accepted tht international organizations play a pivotal role in global affairs and, therewith, in international law. The first organizations were created with a view to managing problems of communication. Yes they started to become important players in particular after World War I, when their potential to manage global security and global labour relations was tested.7 The leading theory about international organizations is referred to as functionalism, and can already be discerned in some earliest writings. The underlying idea is that whereas states are organized on a territorial basis, organizations are built around functions. They are often considered to have such rights, powers, privileges and immunities as are necessary to enable them to exercise those functions. Many human rights activities are somehow within the province of an international organization, but there is one significant exception, ant that is environmental protection. This signifies the absence of broad political agreement on whether and how to protect the environment and, above all, who gets to pay the bill. The industrialised states are, for the most part, ready to explore green alternatives, and urge less developed states not to make the same mistakes. Emerging industrial powers, however, claim a right to industrialize no matter the environmental costs. Organizations are the creatures of their member states, and those states are usually represented in a plenary organ, such as the UN General Assembly or the WTO Ministerial Conference. Such plenary organs are typically organs for debate and discussion rather than quick decision-making; they are platforms for political leaders to manifests themselves on the global stage. Many organization have an executive organ to handle urgent matters and, possibly, matters within their own delimited sphere of competence. A typical example is the UN Security Council. Virtually all international organizations, no matter how small, will have an administrative organ, a secretariat, whose task will include the execution of decisions of the policy-making organs and the preparation of meetings, translation of documents, etc. THE UNITED NATIONS Set in in 1945, it is generally considered the most important organization, for a variety of reason. One of these has to do with the scope of its activities; the UN occupies itself with nearly all aspects of international life, and can thus be said to be an organization of general jurisdiction. While its main task is, arguably, to provide for international peace and security, it also function as a platform for discussion on numerous other topics, and it is telling that some twenty other international organizations are formally linked to the UN, forming what is sometimes referred to as the “UN family”. Moreover, the UN comprises well nigh all states in the world; at present, it has 193 member states – only a handful of very small states remain outside, as well as some entities whose statehood is debated (Kosovo and Taiwan, for instance). As a matter of law, the UN has another element that elevates it above other organizations. Under article 103 of the UN Charter, obligations for member states arising under the Charter “shall prevail” over other competing obligations. International Law, Jan Klabbers Semestre 2° 30 regimes already ousted from power. Universal jurisdiction thus runs the risk of becoming and exercise in “looking back in anger”. It also runs the risk of becoming a figleaf for the exercise of political power, rich Western states prosecuting this individuals who offend the standards of those rich Western states. For these reasons, universal jurisdiction is bound to remain controversial, and it is notable that while the principles is undoubtedly accepted, few treaties actually make universal jurisdiction compulsory. EXTRATERRITORIAL JURISDICTION Sometimes the exercise of extraterritorial jurisdiction is rendered problematic. Perhaps the best known example relates to the reach of US anti-trust law. traditionally, the US courts have assumed jurisdiction over acts done elsewhere if those acts would affect the US market; this has become known as the “effects doctrine”. Yet, under the slogan “if you can’t beat them, join them”, the CJEU itself has started to be as aggressive as the US courts. Of increasing political relevance is the reach of international human rights law. Typically human rights treaties provide protection, in the words of article 1 of the ECHR, “to everyone within their jurisdiction”. The ECtHR in Lozidou it accepted that the reach of the convention included territory under occupation. In Bankovic, it held that the reach of the convention did not extend outside the states parties to the convention. The Court thereby seemed to suggest that the “legal space” created and protected by the convention was, in principle, limited to the parties’ territories. In its more recent case-law the Court seems to have accepted at least the proposition that with public power comes responsibility, holding the UK responsible for the behaviour of the UK troops in Iraq on the theory that the UK exercised effective control over Iraq at the relevant moment. Things are also problematic when military troops are located abroad and become involved in common crimes. It has been argued that such a situation required a special treatment; it cannot neatly be captured in terms of the five principles. CONCURRENT JURISDICTION It may happen the several states may be able to claim jurisdiction over one and the same act. Imagine, for instance, a shooting spree on San Marco Square in Venice, Italy, with a Bulgarian gunman taking the lives of three German tourists and a Brazilian diplomat. In this hypothetical examples, jurisdiction could be claimed by Italy (territoriality) and Bulgaria (nationality principle), and perhaps also by Brazil (if protection of diplomat in considered to fall within the protective principle) and Germany (passive personality). In cases of concurrent jurisdiction, it may be quite a hassle to figure out which state has the stronger claim. In the normal course of events, the best cards are held by the state holding the suspect in custody. Thus, states will have to ask for extradition. THE POWER OF INTENATIONAL ORGANIZATIONS International organizations lack their own territory, and lack their own population; it follows that their authority must find a different basis. The leading theory is that organizations are establish on a functional basis; their authority derives from their function of functions, and this is usually captured by claiming that international organizations can exercise legal powers and in order to give effect to that function the organization must be able to exercise some authority. The member states may clearly specify in the treaty setting up the organization what the powers of the organization an its organs are. Thus, the member states of the UN have conferred upon the UN Security Council the “primary responsibility for the maintenance of international peace and security”. They have given the UN the power to promote “higher standards of living” and respect for human rights (article 55 UN) or, more specifically the power to conclude agreements with other international organization (article 57 UN). Organization also have powers that can be implied from their constituting treaties. This implied powers doctrine comes in two guises. One school of thought maintains that an implied power is a power necessary to give effect to an explicit power. The broader approach though connects implied power not with explicit powers, but with the functions of the organization. Under this theory, the organization will have any powers that may be necessary for it to achieve its goals. International Law, Jan Klabbers Semestre 2° 31 This broader theory is bases on the ICJ’s 1959 Reparation for Injuries opinion, in which the Court held that the UN had a right to bring claims against a non-member state because this would enable it to carry out its functions, despite the fact that its constituting document said not a word about the power to bring claims. This doctrine is so broad, indeed, that it has come to justify all sorts of activities being undertaken by international organizations, providing much of the legal justification of what in other contexts is referred to as “mission creep”. Thus, even an implied power can rhetorically be traced back to the wishes of the drafters and thereby to the consent of the organization’s member states. It is useful to distinguish between the capacity of an international organization to engage in activities, and its competences or powers. Generally speaking though, the capacity of organizations is reined in by their limited competences. SOVEREIGN IMMUNITIES Over time, the practice grew of providing states and their plenipotentiaries with protection against the authorities of the state with which they were supposed to do business, and these have found recognition in the law of immunities. It is generally accepted that states themselves cab be immune from prosecution in other states, as can their representatives, and much the same applies to the international organizations. For centuries, states were held to be absolutely immune, meaning, in effect, that states could not be prosecuted before the courts of other states. This worked fine when states and their rulers were deemed identical (“L’état, c’est moi”) so until the twentieth century, when states started to take on and increasing number of functions, including the operation of state companies. This now opened the possibility of states companies reneging on their contract with impunity for, being instruments of the state, they could benefit from the state’s absolute immunity. This prompted a number of states slowly to resort to a different approach; states would still be immune for their governmental acts (acta jure imperii), but not for their commercial act (acta jure gestionis). How to tell the difference? Some state proposed to look at the object of the transaction, some other preferred to look at the nature of the transaction. It would seem that this second approach has become the more generally accepted. It is important to note that international law does not prescribes anything here; instead, it is permissive. It permits states to adopt absolute immunity; likewise, it permits them to adopt a system of relative immunity. Attempts to harmonize the various practices of states have so far not been very successful. The European Convention on State Immunity, concluded in 1972, has yet to enter into force, and the more recent and more universal UN Convention on the Jurisdictional Immunities of States and their Property, concluded in 2004, still has a long way to go before it acquires the required number of instruments of ratification. Part pf the problem is that realization has dawned that there is a category of acts that defy categorization as either “official” or “private”. Think, for instance, of human rights violations; these are rarely done for private reasons, and can thus not be considered acta jure gestionis. Yet, it would be awkward to accept human rights violations as official governments business, to which immunity applies. While there is case-law to his effect from domestic courts, in relation to such acts as torture and even the Holocaust, it is difficult to think of such acts as being acta jure imperii and thus entitled to sovereign respect. In a 2012 decision, the ICJ none the less – and rather controversially – upheld the immunity of a state for gross human rights violations. HEAD OF STATE AND OTHTERS Derived from the idea of sovereign immunity is the idea that the leaders of states are still immune from jurisdiction, at least while in office. This was confirmed at the state of customary international law in the 2002 Arrest Warrant case. International Law, Jan Klabbers Semestre 2° 32 The matter gained considerable political momentum during the 1990s with, first the creation of rhe ad hoc tribunals for Yugoslavia and Rwanda and, second, the arrest of General Pinochet, the former dictator of Chile, in a hospital in London. Article 7 of the ICTY Statute lifts the immunity of political leaders, including heads of state and government, as does article 6 of the ICTR Statute. This allowed the prosecution of Kambanda (for Rwnada) and Milosevic (for Yugoslavia), and while the former was indeed sentenced to life imprisonment, the latter died during the proceedings against him. DIPLOMATIC PRIVILEGES AND IMMUNITIES International law has long recognized that diplomats, their immediate families and others working in or at an embassy, a joy a certain privileges and immunities, and those rules, customary in origin have largely been codified in the 1961 Vienna Convention on Diplomatic Relations. The convention males a distinction between four kinds of persons: there are the diplomats proper, the technical and the administrative staff, the service staff and the private staff. All of them boast some level of privileges and immunities, but the level for diplomats is higher than for the other categories. Diplomats are immune from prosecution, but if suspected of crimes they can always be expelled being a “persona non grata”. The mission (i.e. the embassy) is inviolable; domestic authorities may not enter excepts with the ambassador’s permission or, in extreme cases, the permission of the sending foreign minister. This is a strict obligation, and often upheld in even the most extreme circumstances. Diplomatic agents enjoy immunity from criminal jurisdiction in the receiving state, as well as immunity form administrative and civil jurisdiction, except in certain narrowly defined circumstances. They are also inviolable; they may not be arrested and should this happen, they should be promptly released. Diplomats are also exempt from, social service charges in the receiving state, and rom al sued and taxes. Much the same also applies to the technical and administrative staff, excepts that their immunity from prosecution extends only to official acts. Members of the service staff enjoy official act immunity, exemptions from taxation on their salaries and exemptions from social service charges and private servants of the mission enjoy a more limited scope. International Law, Jan Klabbers Semestre 2° 35 The term “third generation human rights” refers to collective rights. The first manifestations thereof were the minorities treaties concluded in the aftermath of World War I, and the treaties bringing an end to slavery. After World Was II an important milestone was the Genocide Convention which defined genocide as committing violent acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The legal difficulties here are twofold. First, it would seem that violence against other groups does not qualify as genocide, and second, it tends to be difficult to prove the “intent to destroy”. Thus, article II provides that “deliberately inflicting” certain conditions on a group is an example of an act which may amount to genocide. Other collective rights include the right to self-determination such as the rights to a clean environment. One of the most important intellectual problems here is to define group in question. Provided that a minority has a right to autonomy, how to determine who is part of the minority? Is that a geographical area, such as Kosovo, or does it encompass rather ethnic communities. Another issue is how the group right relates to individual rights. The legal provision at issue in this case was article 27 ICCPR, which aims to protect the collective right of a group to enjoy its culture by means of creating an individual right for members of the group. On the one hand, doing so is understandable, especially in a convention generally geared towards protecting individual rights. On the other hand, by focusing on individuals enjoying a collective good, the provision neatly illustrates the tension between individualist and communitarian thought, reflecting the wider philosophical divide referred to above. SELF-DETERMINATION Since individuals derive their identity from the groups they are a part of, such groups may also require protection. The main example of such a group right is the right to self-determination. This entails that identifiable groups have right to determine for themselves how they wish to be politically organized. Under the influence of the decolonization process, the right to self-determination became enshrined in the two UN human rights covenants of 1966, and was confirmed as one of the main principles of international law in a Declaration of Principles adopted by the General Assembly in 1970. It is generally considered a rule of customary international law, ant the ICJ has referred to self-determination as an erga omnes principle. There are two major problems usually associated with self-determination. The first is the identification of the “self”: who bears the right to self-determination? One might think of groups sharing some objective factor such as the same language, ethnicity or history, but this does not quite work as planned. Where objective factors are under-inclusive or over-inclusive, attention shifts to “subjective” factors; a people is a people id this is the group’s self-identification. But that, in turn, may create authoritarian overtones. The second problem with self-determination is that the main claim related to it is a claim of secession, but that in turn is difficult to reconcile with the stability of existing statehood. International la w is reluctant to break up existing states, for doing so might destabilize the global order. It may be more fruitful to regard the right of self-determination not so much as leading to a right of secession, nut as leading to either “internal self-determination” or as a right to political participation on equal terms for the minority. NATIONALITY International law by and large leaves the granting of nationality to domestic law, and typically, domestic law chooses on of two main methods for granting nationality. The first and most widespread method holds that children will acquire the nationality of their parents, regardless of where they are born. Thus, nationality follows the bloodlines: jus sanguinis. As a result, children born of Dutch parents will become Dutch nationals, even if they are born abroad. The leading alternative, practised in particular by the USA, is to grant nationality to everyone born on a state’s territory: jus soli. International law also settled limits to the freedom states. Thus, as the PCIJ held in 1923, it was unacceptable for France to grant French nationality to all inhabitants of the French zones in International Law, Jan Klabbers Semestre 2° 36 Morocco and Tunis, for this also affected people who already had a nationality. The main other setting in which international law enters the picture is in situations of dual nationality. The current trend in Western Europe, under the influence od hard-nosed populist politicians, is to be strict on dual nationality. If people emigrate, for instance, and take on the nationality of their new state of residence, they may automatically lose their old nationality. All of this would not be a problem if it were not for the fact that nationality comes with rights. On exception is created by EU law which has invented its own notion of citizenships. THE RIGHT TO HAVE RIGHTS? STATELESS PERSON, REFUGEES AND MIGRANTS Before the introduction of human rights in international instruments, human rights were typically only granted to citizens of states. The stateless so had few or no rights. One way in which some human rights instruments have tried to solve this problem is to provide for human rights protection not just to citizens of contracting parties, but to everyone who comes within the jurisdiction of the instrument concerned. Thus, article 1 ECHR provides that the parties “shall secure to everyone within their jurisdiction” the rights enshrined in the convention. The human rights of those who have left their native communities tend to be problematic. Under the Refugee Convention only those who flee for fear of political persecution may qualify as refugees and therewith obtain refugee status. This leaves two large groups in the cold. First, those who flee for economic reasons are not considered refugees within the meaning of the Refugee Convention. Second, the Refugee Convention only applies to those who cross boundaries; those who remain within their own states are considered internally displaced persons. The 1951 Refugee Convention originally was limited to protecting those who had fled the Nazi horrors and the Stalinist terror. The convention was complemented by a protocol concluded in 1967, which broadend the protection to other settings. The central provision of refugee law is the prohibition of non-refoulement, laid down in article 33, paragraph 1 of the Refugee Convention and sometimes said to be jus cogens: “No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” While this would seem to be generally adhered to, none the less states often send refugees back to the state where they first fled to. While the conclusion of the Refugee Convention was undoubtedly a humanitarian achievement, non the less the reluctance of states to create such a convention shines through many of its provisions. Article 2, for instance, points out that refugees have responsibilities toward the state that accepts them, and article 9 authorizes a suspension of the right of refugees in times of emergency. Since the scope of human rights instruments is typically determined on the basis of a state’s jurisdiction rather than its territory pure and simple, refugees may find protection under human rights conventions; for instance, when located in a state party to the ECHR, refugees should be given access to courts under its article 6. Much the same applies to migrants but it has been observed that instruments of international law do little to take the peculiar situation of migrants into account. For that reason, a special convention on migrants’ rights has been concluded which however, adds little to general human rights law and has met with a lukewarm response on behalf of states. Indeed, one major problem is that for all practical purposes the convention misses its target. About international law relating to labour issues we have to say that most of it is still domestically oriented, aiming to embed rights for the domestic workforce. Laudable as that is, it still falls short of protecting migrant workers. In order to fil that gap and facilitate the creation of workers’ rights for migrants, some academics have posited a concept of “transnational labour citizenship”, in order International Law, Jan Klabbers Semestre 2° 37 to facilitate the free movement of people while preventing the erosion of working conditions in the countries that receive them”. International Law, Jan Klabbers Semestre 2° 40 This distinguished force majeure from two similar grounds: distress and necessity. Distress relates to situation where alternative courses of action exist, but would demand sacrifice of the actor concerned. Necessity, finally, is the most “political” ground, as it aims to justify behaviour that would otherwise be wrongful as necessary to protect a vital state interest. The ground of necessity lends itself to easy abuse, and therefore comes with strict conditions; under article 25 of the Articles on State Responsibility, the national interest at stake must be “an essential interest”, which must be under “grave and imminent peril”, and the conduct concerned must be relatively harmless toward the state to which the obligation is owed or the international community as a whole. CONSEQUENCES OF RESPONSIBILITY Traditionally, international law singles out three possible forms of reparation for injury. Ideally, the state in wrong will provide restitution and restore the situation as it would have existed without wrongful act. Since the latter depends on conjecture, article 35 of the article on state responsibility has opted for the easier-to apply restoration of the status quo ante. Falling this, reparation may take the form of compensation, and sometimes satisfaction is considered sufficient (articles 36 and 37 of the Articles on State Responsibility). Restitution is the main form of reparation and includes the cessation of the wrongful act but, logically, this will often also have to precede it. The third form of reparation may take is known as satisfaction and, as article 37 of the Article on State Responsibility holds, this “may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality”. RESPONSIBLE TO WHOM Despite the multilateral form of a treaty, the obligations are typically seen as giving rise to bilateral relations. It follow that the law of state responsibility also thinks primarily in terms of bilateral obligations, but sometimes it does not sound plausible. For instance, the above logic foes not apply to human rights treaties; the torture of a Turkish prisoner by Turkish authorities will harm the prisoner, rather than the other parties to a human rights convention. Then, article 49 of the Article on State Responsibility also allows others to invoke the responsibility of the wrong doing state. The same philosophy that undergirds jus cogens in international law (the exsistence of community interests) hs thereby also entered the law on state responsibility. In Construction of a Wall, the ICJ spelled out some of the consequences of a breach of an erga omnes obligation; all states are under an obligation to refrain from recognizing he illegal situation; they are under an obligation not to render aid or assistance to the wrongdoing state, and to ensure compliance by the wrong doing state. The idea of allowing any state to intervene in order to stop gross injustices retain a strongly seductive quality. Such a wide avenue for countermeasures may open the door for the great powers to establish domination in the name of community values. After all, should something nasty happen in, say, Syria, probable interveners would be USA, France or China, rather than, say, Nepal, Eritrea or Honduras. Even more controversial was the idea that states could commit crimes and thus be held criminally responsible. This was controversial not just because it also presupposed a public law element, but also because it would introduce a punitive element. This then also created the question of the proper punishment; if a state commits a crime, the what can be done against the state? It would be unthinkable to put a state or its government in prison, or order a government to abdicate. The notion of holding states criminally responsible was largely given up. REPSONSIBILITY OF INTERNATIONAL ORGANIZATIONS Up until the 80s member states of international organizations could, at least in theory, be held responsible. Hence, for a long time, it was thought that a responsibility regime for international organizations was not really necessary. As a result, international lawyers began to think seriously about a set of rules on the responsibility of international organization, and the ILC began work on the topic in 2000, when it appointed its member Giorgio Gaja as a special rapporteur on the topic. Gaja’s work was made extremely difficult by two considerations pulling in the opposite directions. On the o one hand, the rules on International Law, Jan Klabbers Semestre 2° 41 responsibility must, substantively, follow the rules on state responsibility and its two principles (attribution and internationally wrongful cat). On the other hand, international organizations are not identical to state; they have no territory of their own; they lack sovereign jurisdiction and lack the sort of officials whose acts often give rise to responsibility – organizations have no police officials and no military. Attribution is problematic, largely because organizations do not have their own troops or officials. So the attribution of responsibility to a UN peacekeeper is problematic because peacekeepers are not on the UN troops but troops formed by different member states. A sobering example is the decision of the ECtHR in Behrami and Saramati, in 2007. Here the issue concerned the responsibility for conduct of the UN troops in Kosovo, which had led to some (alleged) human rights violations. The victims of these violations brought cases against some of the UN’s member states most closely involved, in particular France and Norway – under the ECHR, this is the most obvious route. The Court’s finding that the conduct was attributable to the UN therewith created the curious problem that the Court also had to find the case inadmissible; the UN is not a party to the ECHR, and thus the Court has nothing to say about the UN’s conduct. Here them, attribution of conduct to the UN resulted, in effect, in a “leaking away” of responsibility. Yet the main international organizations are not very interested in having firm and detailed rules on respo0nsiblituy to begin with, and most active organization in the international legal order (the EU) would much prefer to carve out a separate niche for itself. Given these uncertainties, it is perhaps no coincidence that both the International Law Association (ILA) and individual academic have launched proposals arguing that international organizations can be best held accountable by borrowing notions form administrative law. even such neutral-looking devices as administrative law principles ,ay still five rise to profound political disagreement and widely differing interpretations. INDIVIDUAL RESPONSIBILITY International law has for centuries recognized something akin to the responsibility of individuals for their conduct. This has mostly been limited to conduct on the battlefield. The underlying theory was neatly formulated by the Nuremberg Tribunal, when it held that states are abstractions that cannot act excepts by means of people of flesh and bloods. It flows that when states commit an internationally wrongful act, it is possible to single out the “responsible” individuals and try them as individuals. In principle, following this theory to the extreme, there are few wrongful acts that cannot be traced back to individuals. Individual responsibility responds to the urge to actually punish those who commit serious crimes under international law, and thereby almost by definition presuppose the existence of international courts and tribunals. These exist, but mainly in the sphere of international humanitarian law and international criminal law. it is largely for transgression of these bodies of primary rules that individuals can be held responsible under international law; other bodies of primary rules have yet to develop a responsibility regime. SHARED RESPONSIBILITY? Focusing on individual responsibility misses the point that many evils acts can only take place because of the existence of an institutionalized system of terror (as Hitler’s or Stalin’s). A focus on individual responsibility tends to hide from view the extent to which individuals and political structures are combined to disastrous effect. Often the behaviour of high-ranking state official need not be inspired by nasty or evil motives. Evil can sometimes result from nasty motives, but can also, in large bureaucracies, result from the banality of pushing papers. A focus on individual responsibility has problems capturing this type of evil, precisely because it is not born out of evil motives but may almost inhere in the existence of rational bureaucracy. Thus, a focus on individual responsibility ignores the underlying framework that sometimes facilitates gross crimes. Conversely, a focus on state responsibility tends to ignore the role, sometimes decisive, of individuals. The risk then is that the focus can constantly oscillate between state responsibility and individual responsibility, to such an extent that eventually no one is held responsible or to such an extent that both are held responsible in ways that are deemed unjust. Things are further complicated by International Law, Jan Klabbers Semestre 2° 42 the possible addition of a third layer of responsibility: that of international organizations. The risk of responsibility leaking away looms large: where everyone can be responsible, no one is. International Law, Jan Klabbers Semestre 2° 45 For instance, under the various UN human rights conventions, a state can be a party without accepting the optional protocol that would provide the quasi-judicial treaty bodies. With the jurisdiction to hear cases. There are various ways in which parties can accept the ICJ’s jurisdiction. These are listed in article 36 ICJ, and paragraph 1 of article 36 alone already lists three possible “heads of jurisdiction”: The jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the charter of the united nations or in treaties and conventions in force. Other heads of jurisdiction included the optional clause, transferred jurisdiction and the rare institution of forum prorogatum. All cases which the parties refer to it It’s the easiest way for the ICJ to assume jurisdiction. Parties conclude an agreement to bring their case to the ICJ, and ideally, such a “special agreement” (or compromis, in French) will dispel all doubts. The Court will have to verify the reality of both states’ acceptance of its jurisdiction, and it tends to err on the side of caution. If the Court is not certain, is sometimes dismisses the case. The Court has also specified that if there is indeed a commitment to seize the ICJ discernible in the text of a compromise, then the subjective intentions of the two parties at the time of concluding the compromise are further significance. All matters specially provided for in the Charter When the UN Charter was drafted, it was for a while thought useful if the Security Council could order states to submit their dispute to the ICJ. At the end of the day, however, this idea failed to meet with sufficient support. This sentence is a classic example of a “dead letter” provision because it has not been formally deleted. All matters specially provided for … in treaties and conventions in force Quite a few treaties envisage that when a dispute arises concerning the interpretation or application of the treaty, the ICJ may be seized. Perhaps the best-known example is the article IX of the Genocide Convention. This became a well-known provision when a number of communist states signalled their intention to lodge a reservation against article IX upon ratifying the Genocide Convention. This led to heated debates on whether reservations to jurisdictional clauses were permissible when the convention itself was silent on reservations, to an advisory opinion of the ICJ and eventually to a new regime on treaty reservations, more or less codified in the VCLT. The typical formula in a jurisdictional clause provides the ICJ with jurisdiction in case of a dispute involving “interpretation or application” of a convention. Sometimes the jurisdictional clause is laid down in a substantive treaty provision; sometimes also it can be part of an optional protocol. The latter is preferable for political reason for it allows states to join the treaty even though they are reluctant to submit disputes to ICJ. In such a case, they can simply refrain from accepting the optional protocol. Article 36, paragraph 1 provides that the jurisdictional clause must be embedded in a treaty or convention “in force”; obviously, a clause in a treaty that has never entered into force, that has been lawfully terminated or that is regarded as invalid should not be held against a state. The optional clause The technically most complicated basis for the Court to assume jurisdiction resides in the so-called optional clause jurisdiction. The drafters of the Statute established that all states were invited (in article 36, paragraph 2 ICJ) to declare to accept as compulsory the Court’s jurisdiction. This seemed like a good idea at the time, but much of the sting was removed by allowing states to insert all sorts of conditions and clauses and since the system works on the basis of reciprocity, the ICJ can only work on the basis of the lowest common denominator. If state A has accepted the Court’s jurisdiction from 1 January 2000, and state B has done so from 1 January 2008, then International Law, Jan Klabbers Semestre 2° 46 disputes between A and B arising between 2000 and 2008 are excluded from the scope of the ICJ’s jurisdiction. States have seen fit to insert other conditions as well. Thus, some optional clause declarations exclude disputes with particular groups of states. Sometimes states may be inclined to exclude issues that they anticipate to be controversial. Most problematic has been, however, what has become known as the “automatic reservation”. These are clauses in a declaration by which a state claims that it will accept the ICJ’s jurisdiction except for matters falling within that state’s domestic jurisdiction or related to its national security, to be decided by the state itself. Obviously this grants the state concerned an enormous discretion; hypothetically, it could invade another state but escape scrutiny by claiming that the matter was related to its national security or domestic jurisdiction. Here to, however, reciprocity applies, which means that a state with such an automatic reservation, should it bring a case against another state, cannot prevent that other state form invoking its own automatic reservation, against it. Since optional clause declarations are unilateral undertakings by states, they are free to amend or withdraw them at any time. The Court has held, however, that amendments or withdrawals cannot take immediate effect. Transferred jurisdiction Although in strict law the PCIJ and the ICJ are separate entities and it cannot be said that the ICJ is legally the continuation of the ICJ, none the less the two institution have in common their function as the world’s only international court of general jurisdiction, and they work on the basis of (by large) the same constituent document: the Statute. In this light it make perfect sense that cases that states would have referred to the PCIJ, for instance by means of a treaty provision, are considered transferred to the ICJ. This is provided for in article 37 ICJ, and much the same is said in article 36, paragraph 5, with respect to optional clause declarations. Forum prorogatum In the late 1940s England initiated proceedings before the ICJ against Albania, the state it held responsible for deaths due to mines in the Albanian sea. Albania had never accepted the jurisdiction of the ICJ, but it decided to go along with the proceedings; it filed memorials, and even appointed an ad hoc judge. So the Court could decide that based on the Albania’s behaviour, Albania had accepted the Court’s jurisdiction in this particular case. This is sometimes referred to as forum prorogatum, an emanation of the classic notion of estoppel. Under article 38 of the Rules of Court as drawn up in 1978, it is also possible to start proceedings against a state that has not yet accepted the Court’s jurisdiction. If the respondent state accepts the invitation, the Court can exercise its jurisdiction based on this ad hoc acceptance. ADMISSIBILITY The Statute of the ICJ contains little on the admissibility of complaints. Customary international law recognizes some limits to the freedom of states to bring complaints to The Hague. The two most relevant ones are the exhaustion of local remedies rule, and the rule concerning the nationality of complaints. A possible third rule is more elusive, and might relate to the time factor. That is not to say that historical facts are excluded before the Court. It is merely to say that the legality of historical documents will not easily come before the Court unless they play a role in an on-going dispute. The only situations then where admissibility.. conditions tend to come into the picture is when states exercise what is often referred to as diplomatic protection on behalf of their nationals. This may occur, for instance, when the possessions of a national are expropriated by another state without proper compensation, or where a national has been subject to human rights violations. Exhaustion of local remedies This is based on two policy considerations. First, it gives the accused state a chance to rectify things before the matter is taken to the international level. Second, it prevents diplomatic channels from clogging up. There is one major exception, and that is when it is clear that local remedies will be ineffective. International Law, Jan Klabbers Semestre 2° 47 The nationality of complaints Policy considerations dictate that states can only bring complaints on behalf of their nationals, be they individuals or companies. Otherwise, individuals or companies might involve in “state- shopping”, or possibly bring multiple cases via multiple states. In the background is, moreover, the idea that the wrong against the individual or company is an affront against the dignity of the state of nationality. The same nationality rule also applies to companies; a state may only extend diplomatic protection companies that have it nationality. This raises the issue of how the nationality of a company is determined, and this issue reached the Court in 1970, in Barcelona Traction. Without firmly deciding how a company acquires nationality, it non the less made clear that this could not depend on the nationality of the shareholders, if only because shares can be sold very quickly and across boundaries and, moreover, are usually held by a variety of people from a variety of backgrounds. INTERIM MEASURES OF PROTECTION It may sometimes happen that the Court is asked to order a state to stop behaving in a certain way, so as not to endanger any rights prior to a final decision by the Court. This order is contained in what are called “interim measures of protection”. Under the operative provision (article 41 ICJ), it would seem that such measures are not binding; the Courts said to have the power to “indicate” interim measures, and, moreover, merely specifies that measures “ought to be taken” by the parties. Taken together, this would signify that interim measures are in the nature of recommendation more than anything else. A more functional approach would argue that since the article is concerned with protecting the rights of the parties during proceeding, they must by their very nature be compulsory. This holds true even more strongly in light of the circumstance that final decisions by the ICJ are binding. What is the point of issuing a binding final decision if a party has been allowed to undermine it by destroying rights during proceedings? Traditionally the Court has been somewhat reluctant to order interim measures of protection, but this may partly also have been due to the circumstance that until the 1990s. few cases came before the Court where the protection of rights pending litigation was at issue. Partly the Court’s reluctance may be explained by the problem of jurisdiction. The problem is this. If it turn out, upon closer scrutiny, that the Court lacks jurisdiction to decide the case, then any interim measures transgress its competence, as it cannot claim authority over states without their consent, and an order of interim measures presupposes authority. As a result, the Court will only order interim measures in those cases where it can satisfy itself quickly that it may have jurisdiction. COMPENSATION The Court ha the possibility, if it finds that one of the parties has violated its obligations under international law and other has suffered financial or other losses, to order compensation. This, however, is relatively rare. Sometimes the Court is content to issue a declaratory judgment; the mere finding that the other side has violated the law must be considered sufficient satisfaction. Often, though, the outcome is some form of settlement. This is obvious in cases of boundary delimitation; the delimitation her is the judgment, and much the same can apply to cases where the Court decides on title to territory. A kind of settlement can also be seen in those cases where the Court finds that both parties had violated their obligations. Sometimes the Court may decide that the plaintiff has got what it wanted if the respondent state has modifies its behaviour and sometimes the Court decides that the parties should further negotiate in order to reach a settlement – it may then instruct them, with some precision, as to the factors they ought to take into account. And then sometimes parties reach an agreement on how to settle their dispute before the Court can order compensation. MISCELLANEOUS ISSUES Non-appearance There is no obligation for parties to appear before the Court, even it is convenient, and the ICJ Statute even contains a provision (article 53) ordering the Court, in cases of non-appearance, to International Law, Jan Klabbers Semestre 2° 50 An illegal act may become “legal” by being done in response to an earlier violation of international law. This is subject to strict conditions. Historically, countermeasures, known as “reprisals”, could come in essentially two forms: they could be non – forcible, or they could involve the use of force (“belligerent reprisals”). As international law gradually came to frown upon the use of force in any circumstances, it stands to reason that the belligerent reprisal fell into disrepute, and it is by now commonly accepted that reprisals may NOT involve the use of force. One of the classic case involving reprisals is the Naulilaa case: an arbitral award setting a dispute between Portugal and Germany. The three criteria stated in Naulilaa Case were by and large confirmed in a more recent arbitration. This concerned the Air Service Agreement Case, which arose out of a dispute between France and the USA. The tribunal, having confirmed a general right to take countermeasures in case of a violation by another state, found that the first condition for the lawfulness of countermeasures was that they had to be proportional. This in itself, so the tribunal suggested, was to some extent a matter of appreciation: it does not suffice to just compare one side’s financial losses to those of the other side. Instead, one should also take into account the positions of principle involved. Whereas Naulilaa award stipulated that a countermeasure should be preceded by an unsatisfied demand, the Air Services Agreement tribunal upheld a somewhat different position. While it upheld the value of resorting to negotiations and consultations, none the it found that such obligations do not prohibit the resort to countermeasures, and argued that proper use of countermeasures can actually stimulate negotiations. The panel found that taking counter measures during negotiations was NOT prohibited and could even be helpful, although the parties should take the greatest care not to escalate their dispute. Still, the right to unilaterally take countermeasures come to an end one the judicial or arbitral procedure has been seen in motion. The panel reinterpreted the second requirement in a fairly subtle manner by claiming that consultations and countermeasures could go hand in hand. The requirements have been codified in articles 51 and 52 of the Article on State Responsibility: Naulilaa case In 1914 Portuguese soldiers in South West Africa had accidentally killed a German official and two German officers. In response, German troops attacked a number of Portuguese forts and posts and conquered a Portuguese forts at Naulilaa. When Portugal complained before a special arbitral tribunal set up and the Versaille Treaty, the tribunal investigated whether Germany’ act could qualify as a reprisal, formulated three conditions. 1. Reprisals might be legitimately exercised only when preceded by a wrongful act. In casu, because the Germans had been killed by accident, the tribunal held that this condition was not met. 2. A reprisal must be preceded by a request to redress the injury. Germany should first have entered into talks with Portugal in order to reach a settlement: the tribunal hat simply warning Portugal that its posts and forts would be attacked was not sufficient. 3. Reprisals must remain proportional. Air Services Agreement Case The parties had concluded an air services agreement in 1946 and supplemented it in 1960, providing among other things for landing and disembarking rights for certain designated carriers. When Pan American Airlines started to behave in a way the French felt was in contravention to the agreement (changing to a smaller plane in London, instead of flying bigger planes straight to Paris), they prohibited PanAm passengers from disembarking effectively banning PanAm from flying to Paris. The USA retaliated by preventing certain French flights from landing in the USA. The matter was submitted to arbitration, with one of the questions being whether the US response had been lawful. International Law, Jan Klabbers Semestre 2° 51 Art 51 gives pride of place to proportionality, whereas art 52 adds the requirement of an unsatisfied demand combined with the required offer of negotiations. Article 22 adds another important requirement: countermeasures are, in principle, only allowed against a state responsible for an earlier internationally wrongful act. The exception might be found in article 54 juncto article 48, and concerns treaties protecting a collective interest or erga omnes obligation: in such cases other treaty partners, and indeed any state, can invoke the wrongdoing state’s responsibility, possibly even including countermeasures. Collective security The lead role in this field is played by the UN Security Council, and the heart of the system is article 39 UN Charter: if the Security Council identifies a threat to the peace, breach of the peace or act of aggression, it can order measures to be taken. Those measures fall into three broad groups: 1. Article 40 UN – the Council can take provisional measures, in order to safeguard the rights to the parties. This has, in practice, not had much impact: The Council has rarely indicated provisional measures but has, instead, moved on to order measures under article 41 and 42 UN Charter. 2. Article 41 UN – refers generally, to measures not involving the use of armed force, and lists a number of possible example. The wording is clearly non -exhaustive: measures Article 51 Proportionality Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. Article 52 Conditions relating to resort to countermeasures 1. Before taking countermeasures, an injured State shall: (a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two; (b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. 2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to preserve its rights. 3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if: (a) the internationally wrongful act has ceased; and (b) the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. International Law, Jan Klabbers Semestre 2° 52 under art 41 may include economic sanctions and the like, but may also consist of measures not mentioned in the article (ex. The creation of international war crimes tribunals – ICTY and ICTR – has been justified under art 41). 3. Article 42 UN – this allows for forcible measures. the original idea was that member states of the UN would place troops at the UN’s disposal, and that those troops would act at the behest of the Security Council to implement forcible measures. this was never realized though. As a result, the typical scenario is that the Council authorizes member states to take any necessary to repel an aggressor state. Those member states then send their own troops while agreeing on some form of unified command (often referred to as “coalitions of the willing”), and those troops themselves continue to operate as national troops, acting under national rules of engagement and remaining subject to national military law. The system hinges on the role of Security Council, for it is only if the Security Council identifies a threat to the peace, or act of aggression, that the system is activated. If the Council does not make such a finding, then no collective action will take place. It is here that the veto right of the five permanent members is often maligned. None the less, the creation of the veto was based in the solid thought that if the global community wants peace and security to be restored and maintained, it will need troops to do so: the veto is the price to pay for saddling five states with the responsibility to take care of peace and justice. The veto, in order to be valid, must be expressed. What is particularly noteworthy is that UN interventions are “recommended” or “authorized”, NOT “ordered”: the Council determines that an “article 39 situation” exists, and then recommends of authorizes action. (See res. 660 (1990) and res. 1973 (2011)). Usually, the mandatory language used in Security Council resolutions under Chapter VII is limited to the aggressor state: the Council may “demand” that Iraq cease its action, but still only “recommend” or “authorize” its other members states to step in and take positive measures. The exception is formed by what may be termed the imposition of negative measures. Thus, in respect of Lybia in 2011, the Council decided to impose a flight ban. The reason why a flight ban can be imposed, while military action can only be authorized, resides in the circumstances that a flight ban demands little implementing action and is therefore practically easier to achieve and, importantly, a little political cost. Such decisions are, under article 25 of the Charter, binding on the UN member states: While this clearly suggests that decisions of the Council are binding, it is unclear whether this refers to all decisions of the Council. The standard practice of “authorizing” action provokes at least two fundamental legal issues: 1. If the UN merely “authorizes” action, can it still be called UN action? It depends on the scopes of Un control. If the actions is in reality an action by a single state (or group of states) without any UN involvement, then the cation can hardly be deemed UN action. Even then though, Un authorization may help to legitimate the action. 2. The authorization is limited in time? The typical practice of the Council is to leave this open. Discussion on the duration of the intervention would considerably complicate things, so often no time limit is specified. As a result, bringing an intervention to an end might require a separate Council decision, but often no decision is taken and things are just left to peter out. This created an awkward situation when, in 2003, the USA and UK invaded Iraq and claimed, in justification, that they were doing so to give effect to Council resolutions from the early 1990s. the underlying argument was that these decisions had never been revoked, and were thus still valid. This particular argument has met with abundant criticism, and rightly so; the Council could not Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. International Law, Jan Klabbers Semestre 2° 55 or aggression. Hence, the invention of so -called target sanctions. These are not, legally, addressed to individuals – the main addresses are still the member states. But it is clear that targeted sanctions have as their aim the establishment of limits on the freedom of movement of individuals, and it is obviously necessary that those individuals are identified by name. The typical procedure is for the Council to impose sanctions relating to a particular situation and to create a “sanctions committee” to oversee the implementation. This committee then also singles out individuals to whom the sanctions may apply, usually on the basis of a proposal from one of its members. As a result, individuals become blacklisted and may find that their accounts are frozen. This practice has provoked a lot of criticism over the last couple of years, because the way in which individuals become blacklisted has none of the formal guarantees of a fair trial. Moreover, one an individual is on the blacklist, the UN has no legal procedures available for contesting the blacklisting. Hence, in imposing sanctions on individuals, the UN violates their human rights by not offering the guarantees of a fair trial, and by not offering any possibility for appeal. Often these individual sanctions are ordered in connection with terrorism, and this applies to the most famous case: the case of Mr Kadi. What the case illustrates above all is the procedural incompleteness of international law, at least on this point. The human rights invoked by Mr Kadi are fairly generally recognized, and also part of the UN legal system. But what is lacking at the level of the UN is a procedure to have those rights enforced against the UN itself: such a procedure is available in the EU, hence Mr Kadi had little choice but to bring his case to the EU courts, despite the awkward circumstances that, in effect, the EU was merely implementing Security Council measures. The Kadi case is probably best seen as a warning from the CJEU to the Security Council, to the effect that the Council should strive to improve the human rights aspects of its targeted sanctions procedures. Some posit that the Security Council too is bound to respect human rights, and there is nothing wrong with domestic courts pointing this out, whereas others may wain that doing so might open a Pandora’s box. Limits to the Security Council? Since the end of the Cold War the Security Council has become very active, and some of its decisions have even come close to being legislative in nature. Debate has been sparked in whether the Council can do as it pleases, or whether it is subject to legal limits. The Charter itself is not very clear on the topic: article 25 suggests that members are bound to give effect to Council action “in accordance with the present charter”, but it remains Mr Kadi Case Mr Kadi is a Saudi Arabian businessman who found, to his dismay, that he was put on the blacklist. As a result, his accounts in the EU were frozen on the basis of an EU regulation implementing the Security Council decision and decisions from the relevant sanctions committee. Mr Kadi forcefully disagreed, and went to the EU courts to contest the legality of the sanctions, citing that the sanctions violated his human rights (fair trial, access to justice and the right to property). The EU Court of First Instance disagreed with him. Mr Kadi appealed to the CJEU, which famously held that since the measures concerning Mr Kadi were taken by the EU, they should be in accordance with EU constitutional standards. These standards included respect for human rights, and since the measures against Kadi violated some pf his human rights guaranteed in EU, it followed that the EU measures had to be considered in part invalid. International Law, Jan Klabbers Semestre 2° 56 unclear whether this refers to Council action, or to the obligation of the members to implement Council action. Many commentators resort to policy arguments: surely it would be an anomaly if the UN sponsored human rights treaties and held governments to account for unjust behavior, while all the time ignoring human rights standards itself. This school of thought finds some support in the case law of the ICJ. The other school of thought points out that limits on the Security Council are not at all that easy to reconcile with the very idea behind the Council: it was set up like a fire department, with the task of quelling fires at short notice and no matter the circumstances. If there had been any idea about limits, those would have been expressly mentioned in the Charter, and at any rate should not make the Council’s primary task too difficult. Obviously, a legislative body should respect legal limits, and should be more or less representative of its constituency. It is no coincidence then that the Council has attracted a lot of criticism: the composition of its five permanent members is hardly representative any longer, and issuing legislation one just cannot ignore the dictates of the rule of law. The main intellectual problem with terrorism in international law is that it is ever so difficult to classify – it defies well – nigh all traditional categories if international law. International Law, Jan Klabbers Semestre 2° 57 Part II – The substance of international law Chapter 10 - Use of force Still, there is little doubt nowadays that warfare is, as a general rule, prohibited. Under the UN Charter, there is a well-nigh total ban on the use of force, with the only one recognized exception than the possibility og engaging in collective security acts: the right to self- defence. That is not to say though that the use of force has become a thing of the past: armed conflicts still occur but much legal argument goes into debating whether such acts can be justified on the basis of customary international law. This suggests that the law on the use of force is made up of two different regimes: the Charter regime, and the customary regime which, according to many observers, may be more flexible than the Charter regime. Abolishing war In 1899 the first Hague Peace Conference took place, organized in the Dutch city of Hague. This conference was of great importance for a variety of reasons, not least that it was one of the first times a conference of more or less universal scope took place. The first Hague Conference saw the adoption of a number of treaties, mostly related to controlling the means of warfare (jus in bello) rather than the right to wage war (jus ad bellum). The Secondo Conference of 1907 went a bit further still, and while it too resulted in a fair number of instruments on controlling the means of warfare, it also led to two instruments that aimed to regulate recourse to war itself. - The first of these was the Drago – Porter Convention, in which the parties agreed not to go to war in order to reclaim contractual debts owed to their nationals. - The second treaty was the Convention on the Opening of Hostilities: under this convention, war should not be commenced without a reasoned declaration of war, or an ultimatum accompagnied by a conditional declaration of war. The existence of a state of war should be announced to neutral powers. The idea was to turn war into a legalized, technical state of being, but it is arguable that the convention eventually had the opposite effect. It stimulated the issuing of declarations of war so as to secure material advantage: Guatemala declared war on Germany in the 1940s so as to justify the taking of enemy property. In recent decades, the declaration of war has fallen into disuse, so much so that some have argued that the 1907 Convention is best regarded as terminated by desuetudo. The UN Charter Already during World War II, allied governments felt that the use of force should be outlawed. The 1941 Atlantic Charter, for instance, a high level political statement issued by UK Prime Minister Winston Churchill and US President Franklin Rooselvelt, pointed out that states should abandon the use of force, “for realistic as well as spiritual reasons”. This was followed in the UN Charter, which lay down an almost absolute prohibition of the use of force in article 2, par. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Those purposes of the Un are listed in article 1, and are very broad as well: they include the maintenance of international peace and security, the development of friendly relations, and international cooperation. In short, there are not a lot of manifestations of the use of force thinkable that would be consistent with the purposes of the UN, and that would not go against the “territorial integrity or political independence” of states. This broad prohibition found almost immediate support from the ICJ. Article 2, para. 4 UN prohibits not only the actual use of force, but also the threat of force. This has proved difficult to operationalize, but still suggests that the drafters were keen on creating as comprehensive a prohibition as possible. What also speaks for this interpretation is that the right to be free from the use of force is not merely reserved for member states, but applies to all states. This is no longer much of a n issue, but was not to be taken for granted in 1945. International Law, Jan Klabbers Semestre 2° 60 It is sometimes posited that selfdefence may also take the form of attempts to rescue national abroad. On such a view, selfdefence is justified not only when a state’s territory is under attack, but also when its nationals (residing abroad) are under attack. The matter is controversial, and the law is unclear. Article 51 envisages both individual and collective selfdefence, and thereby allows for the creation of selfdefence allies. The leading example is the North Atlantic Treaty Organization (NATO), set up in 1949 to defend the West against the perceived Soviet threat. Article 5 NATO stipulates that an armed attack against the other members the right (but not the obligation) to come to the defense if the state under attack. It is also possible to organize collective selfdefense ad hoc, once an armed attack has indeed occurred. This does, however, presupposes as the ICJ made clear in the Nicaragua case. That the state under attack actually asks or assistance. Humanitarian intervention It is sometimes posited that even though the Charter does not specify it, states are none the less entitled to use force for humanitarian reasons. The most recent instance of such a humanitarian intervention was NATO’s intervention in the former Yugoslavia in 1999, to compel Serbia to sop committing atrocities against the population of Kosovo. Humanitarian interventions are highly controversial. The main reason is, no doubt, that humanitarian intervention lends itself to large-scale abuse, it is next to impossible to draw out forma guidelines to justify such an intervention. Added to this is the problem that few states have the military capacity to intervene for humanitarian reasons. Hence, humanitarian intervention can quickly become the prerogative of powerful states, providing them with an excuse to exercise domination. Moreover, what has always remained unresolved is whether humanitarian intervention is a right that states possess, or a right that belongs to oppressed populations, or perhaps even an obligation on states that have the capacity to intervene in other states. Most commentators have described it as illegal: in the absence of authorization b y the Security Coucil, the general position seems to be that humanitarian intervention is prohibited, but that if occurs and seems morally justified or legitimate, the world community grudgingly accepts it. This shifts the discussion from a legal debate to debate about morality, but without providing further guidance as to when intervention would be justified and under what conditions. The debate has taken on a new dimension since the Canadian sponsored International Commission on Intervention and State Sovereignty (ICSS) launched the idea of states having responsibility to protect oppressed people, including against their own governments, in 2001. Abbreviated as R2P. states have the responsibility to protect individuals. Where they fail to exercise this responsibility within their own boundaries, other are entitled to step in. what distinguishes R2P, as formulated by the Commission, from the more traditional idea of humanitarian intervention resides in attention to prevention and in particular reconstruction. Under R2P the international community should not just intervene to stop on-going atrocities, but should also help to prevent atrocities from occurring and should also be involved in rebuilding war -torn societies, if necessary by means of establishing a long-term presence. R2P provides a justification for putting states under international supervision, thereby changing the nature of sovereignty. Under R2P, so Orford suggests, sovereignty becomes conditional, and ultimately to approval by the international community. Terrorism International law has always found it problematic to present a universally accepted definition of terrorism. Part of the problem is, no doubt, that terrorism tends to be politically motivated, resulting in the circumstances that what some regard as acts of terrorism may be regarded by others as romatic acts of resistance. What adds to the difficulties is that for some, terrorism is by definition limited to the acts of non-state actors, whereas others feel that states too can engage in terrorist acts. The international community has aspired to combat terrorism in two ways: International Law, Jan Klabbers Semestre 2° 61 1. The first has been, since the early 1970s, to focus on the prohibition of specific acts of terrorism, regardless of the motivation behind them or the status of the perpetrator. This resulted in the conclusion, in 1970, of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and in 1971, of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. Under article 3 of the latter convention, the states parties undertake to make a number of offences punishable by severe penalties, and in order to prevent the possibilities of offenders fleeing to safe havens, the 1971 Convention also stipulates (in article 7) that states are obliged to prosecute or extradite suspects. 2. Of more recent origin, has been the focus not so much on terrorist activities themselves, but on acts related to and facilitating terrorism. Emblematic is the conclusion of the international 1999 International Convention for the Suppression of the Financing of Terrorism, which makes it punishable offence to provide or collect funds for terrorist activities. Some regional initiatives likewise focus not so much on terrorism itself, but on ancillary activities. Thus, the Council of Europe sponsored the conclusion of the 2005 Convention on the Prevention of Terrorism, which contains provisions on recruitment of terrorists, training of terrorists, and public provocation. Mainly aims to create a special regime for terrorism in extradition law, stipulating for instance that terrorists acts cannot qualify as “political offeces” and thus result in terrorism suspects escaping from extradition. Despite this flurry of activity, the attack on New York’s World Trade Center on 11 September 2001 suggested that there were still holes in the network of conventions. In order to counter this, the Security Council controversially adopted its Resolution 1373 on 28 September 2001, a good two weeks after 9/11. Following resolution 1373, member states of the UN are under obligation to “prevent and suppress the financing of terrorist acts” criminalize the collection of provision of funds, freeze assets, refrain from all kinds of support to terrorists acts, deny safe haven and prosecute and punish terrorist suspects. In this way, the Security Council created a binding set og legal obligations for all its member states and breaking through the classic idea of state sovereignty, according to which states cannot be obliged to do things without their consent. The counter argument would be that in Resolution 1373, the Council comes so close to legislating that it acts ultra vires – and member states cannot expected to “accept and carry out” ultra vires decisions. In the latter conception, there remains the problem of how to act when terrorist groups act from the territory, and perhaps even with the connivance, of states. In line with the general law on state responsibility, it would seem that states can be held responsible either if terrorist acts can be attributed to them or, more likely perhaps, for failing to prevent terrorists acts. A related issue is the question whether a terrorist act gives rise to the rights to selfdefence. After 9/11 the Security Council immediately and unanimously adopted a resolution in which it recognized the right to selfdefence. What is unclear though is whether things go much further: it has been argued, with some cogency, that selfdefence against a state where terrorists are harbored may only be justifiable if further attacks launched from or planned in that state are imminent. After all, the normal conditions of necessity and proportionality continue to apply. The main intellectual problem with terrorism in international law is that it is veer so difficult to classify – it defies well-nigh all traditional categories. The end of armed conflict The history books may be full of important peace treaties, but not all armed conflict comes to an end by means of a peace treaty. The relevance of peace treaties is not to be overestimated: where a peace treaty is in place, the state of war has formally been ended, and hence, acts involving the use of force will require a new justification. Where no peace treaty is concluded, by contrast, there is room for the argument that the states are formally still at war, and that acts of force are to be regarded as legitimate wartime acts. International Law, Jan Klabbers Semestre 2° 62 In much the same way that declarations of war have become rare in inter-state conflict, so has the term “peace treaty” come into disuse in relations between states. Euphemisms such as “agreement on the normalization of relations” tend to be preferred. Still, this takes nothing away from the circumstances that peace treaties continue to be conclude, and are often also concluded following civil conflicts. Typically, such agreements do not merely bring conflicts to an end, but also contain provisions on reconstruction and transitional justice. International Law, Jan Klabbers Semestre 2° 65 Military necessity is an eminently flexible concept. It has been argued, e.g. that the bombing of a city so as to undermine morale can constitute a legitimate activity, and many have suggested that the use of nuclear weapons during WWII was eventually justified because it helped shorten the war and therewith saved many lives. While proportionality cannot be defined in the abstract, the balancing must none the less take place in good faith, and it is not impossible that actors might end up being held to account ex post facto in subsequent war crimes proceedings. The notion if military necessity is a flexible one, which, moreover, by definition must be based on accordance with military assessments and expectations. As a result, findings that the military force used has been disproportional are mostly limited to obviously excessive cases. Arms and weapons Here the agreement of states is pivotal, and over the years states have reached agreement on outlawing many different types of weapon. One of the political problems here is that of trust: if I agrre to get rid of my chemical weapons, can I be sure that my possible future enemies will do the same? Hence, the possibility of verification is sometimes built into treaties outlawing weaponry (e.g. Chemical Weapons Convention – allows for inspections of chemical facilities). Perhaps most debated are nuclear weapons, whose potential for destruction is unparalleled. Having been used twice in recorded history, the legality of nuclear warfare has long occupied the minds of politicians and lawyers alike. In 1995 the General Assembly of the UN submitted the question of the legality of nuclear weapons, the Court addressed whether their use would be compatible with fundamental principle of environmental law, human rights law, humanitarian law and other branches of international law, and while it held that international humanitarian law applied to nuclear weapons, it non the less reached the conclusion that “generally the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of selfdefense, in which the very survival of a State would be at stake”. Currently, there is some debate as to whether the use of drones is allowed under international law. Drones are unmanned aerial vehicles, capable of being used with great precision in order to hit their target, and by being unmanned doing so without any physical risk whatsoever to those who use them. They are reported to have been instrumental in the targeted killing of individuals, and have sometimes ended up killing civilians instead of their targets. One authority concludes that while the use of drones during armed conflict may be legal (depending on the circumstances and the way they are used), it is extremely unlikely that their use outside this context would pass the test of legality: it is bound to conflict with elementary human rights concerns. Military experts are also highly concerned about cyber warfare. International humanitarian law and international organizations It is increasingly common for international organizations to play a role in armed conflict, be it as peacekeeping force or, more actively, by helping to curb aggression. This raises the obvious question of whether international organizations are bound to respect the rules of international humanitarian law. As organizations they are not among the parties to the relevant conventions. To argue that they are bound by those conventions because most or all of their member states are bound is tantamount to rejecting the idea that organization have their own identity and legal personality., but to argue that they are free to act as they see fit would undermine the applicability of international humanitarian law and might be seen as an invitation to the other party to the conflict to do the same, and thereby be counterproductive. In 1999, Secretary General Kofi Annan issued a bulletin outlining observance by UN force of international humanitarian law. The precise format is legally ambivalent: the document is referred to as a “bulletin”, but the entire corpus of international humanitarian law, and as a unilateral declaration, it is not immediately clear when and under what circumstances it can be renounced. The bulletin does lists a number of the basic principles of international humanitarian law, and suggests that UN forces will act in conformity with these. However, even if international organizations can be considered bound by international humanitarian law, the structure of these organizations and of the missions they engage in makes the attribution of responsibility difficult. International Law, Jan Klabbers Semestre 2° 66 International humanitarian law and privatization Similar issues concerning the attribution of conduct may come to the fore when warfare is conditioned by private entities. Traditionally, these were mercenaries: individuals would make themselves available, for a fee, to fight for a price or a king. Mercenaries could not be relied on to have much loyalty to the king or prince they were fighting for, and might be expected to switch allegiance if offered a higher fee by the enemy. Perhaps as a result, mercenaries are not protected under international humanitarian law: they need not to be treated as prisoners off war, need not ti be repatriated once conflict come to an end and can be prosecuted for every activity they have engaged during their employment. The UN has sponsored a Convention against Recruitment, Use, Financing and Training of Mercenaries, in force since 2001, which essentially crimilizes acts related to mercenatism. More common that the use of mercenaries these days is the use of so-called private military companies, and this owes much to the changing nature of armed conflict. Private military companies tend to engaged not so much on the battlefield itself (although this is not excluded), but are typically endowed with responsibilities for ancillary tasks such as the protection of convoys, the organization of logistics or the security of prisoner camps. Moreover, private companies may often be engaged in the postwar reconstruction. The main legal issue here is that of responsibility, and that became painfully cleat after news and graphic pictures spread in 2004 about misconduct in the Abu Ghraib prison: employees of a private military company were seen to abuse prisoners while conducting interrogations on the assignment of the uS government. There may be (at least) three basis for holding the state responsible, despite the circumstances that the private company is not a state organ: 1. The private company may be exercising governmental authority. 2. It may be operating under state control 3. The state has a due diligence obligation to make sure that no human rights violations (or other violations of international law) occur within its jurisdiction. Foreign occupation Hostilities can stop temporarily in the case of foreign occupation: in such case, the law of occupation is triggered, and continues to apply as long as the occupation continues or, more pragmatically, as long as the occupation is recognized as continuing occupation and does not become normalized. Occupation is often linked to warfare, but can alsp result from threats to use force, as the German occupation of Bohemia and Moravia in 1939 suggests, or as a byproduct of a peace agreement. What matters is, as Bevenisti puts it, that “the trigger for international regulation is not the mode of assuming control by the occupant but the temporary suspension of the sovereign’ authority. The occupying power cannot just do as it pleases: it has to respect certain international legal norms towards the civilian population, most notably those derived from international humanitarian law. The key legal provision is still article 43 of Hague Regulations: Benvenisti refers to it as “a sort of mini- constitution for the occupation administration”. If it may be argued that article 43 is geared mostly to the interests of the displaced sovereign, and somewhat less to the plight of the civilians in the occupied territory, the balance is somewhat restored by the Fourth Geneva Convention of 1949, which contains a number of provisions specifically aimed at protecting the civilian population. Thus, article 50 addresses childcare and education, article 53 prohibits the destruction of property and article 55 sees to the supply of food and medication. These provisions are NOT absolute: Geneva Convention generally applies to situations of armed conflict, and hence, the duties of the occupying power tend to be circumscribed by military necessity and the means available to the occupying power. The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. International Law, Jan Klabbers Semestre 2° 67 Jus post bellum and post – conflict governance One cluster of idea involving this jus post bellum focuses on the post-conflict peace itself: the peace agreement should include all the stakeholders in order to be legitimate; there should be no onerous reparations or harsh punishment on states for having committed aggression; individual responsibility is preferable to collective responsibility; some attention should be paid to reconciliation between the warring factors or states, and human rights out to be recognized as basic foundations for the peace settlement. A broader strand though moves towards post-conflict governance: the idea after a conflict, the area in question is best governed, at least for a while, under international auspices. The core of this idea revolves around state – building: administrative institutions must be set up, legal instruments must be adopted and, mundane or not, somehow provision must be made for the garbage to be picked up on regular basis. And these things are best left, so the argument goes, to the international community, as only the international community can be considered impartial. More recently, following independence from Indonesia, East Timor was placed under international administration for a number of years in the late 1990s, and Kosovo, whose territorial status is as yet undecided, has been governed for quite a few years by UNMIK. International law may also have a role to play after dictatorship comes to an end, in situations that are sometimes referred to as “transitional justice”. Here, important questions may arise not only as to whether the dictatorial regime should, ex post facto, be held criminally liable and on what basis, but also how to move on. Typically, the state concerned will be in need of a new constitution, but also in need of a new system of private law, in particular if the end of the dictatorship is accompanied by a shift in political ideology, as occurred in the Eastern Europe of the 1990s. Wars against phenomena A peculiar issue concerning the law’s applicability has risen in recent years in connection with wars without readily identifiable enemies. This applies, in some contexts, to the proclaimed war on drugs, but mostly to the war on terror. Drugs and terrorism are unacceptable and should be fought. Regular police operations are deemed unsatisfactory, ineffective or unproductive: hence, war has to be declared against these phenomena. Regular criminal law and the legal guarantees that come with it under the rule of law (such as the right to a fair trial) do not apply. However, since the particular enemy is not a particular entity but rather a phenomenon, the rules of international humanitarian law may not apply either. This has proved to be quite a potent justification for incarcerating individuals suspected of terrorism, or suspected of aiding and abetting terrorist activities, in particular Guantanamo: those incarcerated were characterized as “unlawful enemy combatants” (a category unknown in international humanitarian law) and initially deprived of habeas corpus and not considered to be prisoners of war either. International Law, Jan Klabbers Semestre 2° 70 was created precisely with a view to prosecuting individual offenders, on the underlying theory, no doubt, that states too often get away with nasty behavior and are, at any rate abstractions, composed of individuals. Prohibition of genocide The international legal prohibition on genocide goes back to 1948, when the Genocide Convention was concluded, in the aftermath of the Holocaust. The decisive criterion here is so- called “specific intent”: expressed in the article 2 of Genocide Convention. This is pretty difficult to prove, and as a result there are relatively few authoritative findings on genocide. Prohibition of crimes against humanity This was an innovation of the Nuremberg proceedings, but has rapidly become accepted as part of positive international law. In the ICC Statute, crimes against humanity involve a number of acts that form part of “a widespread or systematic attack directed against any civilian population”. Here too a separate element of intent (sometime referred to as the “contextual element” or “mental element”) must be present, although it is probably less strict than with genocide. Prohibition of war crimes International criminal law and international humanitarian law meet in the category of war crimes, as these essentially consist of violations of international humanitarian law. Part of the definition of war crimes in the ICC Statutes refers to war crimes as comprising grave breaches of the Geneva Conventions of 1949, as well as other serious violations of the laws and customs applicable in international armed conflict as well as non -international armed conflicts. Still, the ICC Statute also lists some “new” war crimes, including attacks on peacekeeping missions and the use of human shields. As with crimes and criminal law generally, a decisive factor is criminal intent (mens rea). Article 30 of ICC Statute explains the intent: In order to enhance legal certainty, the Assembly of States Parties to the ICC has drawn up lengthy lists breaking down the elements of the various crimes over which the ICC has jurisdiction. Prohibition of aggression Aggression constitutes a special case, in several respects. During the original negotiations, the parties could not reach agreement on a definition, and thus agreed to return to the issue after the ICC’s entry into force. The absence of agreement was not actually, all that surprising: international law has never been able to present an airtight agreed definition of aggression, for the reason that while all aggression involves the use of force, some uses of force may be more acceptable than others. Non the less, at the 2010 review conference in Kampala, the ICC parties reached some form of agreement on what constituted aggression: it consists in the “planning, preparation, initiation or execution” of an act of aggression by a person in a position to exercise control over the political or military actions of a state. Even so, this agreement is provisional: it is subject to ratification by the states parties to the ICC and will need a further decision by the Assembly of State Parties to activate the Court’s jurisdiction. A special problem here was the safeguarding of the role of the Security Council which has the authority to determine the existence of threats to the peace, breaches of the peace or acts of aggression. Hence, the prosecutor can only start proprio motu investigations into crime of aggression once it is clear that the Security Council agrees with the identification of the act of aggression, or at least does not disagree. Individual responsibility holding individuals responsible is no easy task, as war crimes, crimes against humanity, genocide and aggression are typically collective acts, engaged in by groups of people. Moreover, often such Article 2 Genocide Convention In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. International Law, Jan Klabbers Semestre 2° 71 crimes takes place in the context of hierarchically organized operations, with some individuals being in a position to order others to behave in a certain manner. In order to be fair, then, it is essential to figure out which part of the activity was engaged in by which individual. International law addresses this issue in essentially three different ways. *reference to article 25 ICC Statute. 1. First, as confirmed in article 25 ICC Statute, it aims to identify individual culprits. Individuals can be prosecuted, under article 25, for committing crimes, whether individually or jointly, but also for aiding and abetting or, with genocide, for public and direct incitement. Individuals can also be prosecuted for attempting aborted crimes, unless they acted in such a manner as to prevent the crime from taking place or completely abandoned the criminal effort. 2. Individuals can be prosecuted for having ordered crimes (as confirmed by article 25 ICC Statute) as well as for being in command of groups that have committed crimes. This command responsibility, laid down in article 28 ICC Statute can go very far, as it is illustrated by the case of General Yamashita. His case was rather extreme: he was found guilty because a man in his position simply “must have known” of atrocities. Later cases suggest that “should have known” might be a more appropriate standard, which would effectively result, if successful, in a conviction for negligence. 3. Third, following orders may help to mitigate eventual punishment or even constitute a full defense. Under the ICC Statute, the defense of superior orders applies with three different conditions: (no to genocide or crime against humanity) a. only if the order was backed by legal obligation, b. if the person concerned did not know the order was unlawful c. if the order was not “manifestly unlawful”. The idea of unlawfulness must no doubt be seen broadly, covering not just the domestic law of the state of nationality of the accused but also international law. Perhaps the biggest risk involved in relying on individual responsibility is that by focusing on the individual perpetrators, the state itself manages to escape scrutiny. The ICC Statute aims to 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. General Yamashita Case After WWII, the Japanese general was found guilty by a US military commission for having commanded troops engaged in war crimes in the Philippines, even though at the material time he was isolated from his troops and could not have exercised much direct influence on their activities. Such a construction is not ideal: it seems a little unfair to punish individuals for behavior they never took part in and could not realistically have controlled. None the less, it is probably inevitable, otherwise, military leaders could all too easily escape prosecution. International Law, Jan Klabbers Semestre 2° 72 undercut this by providing that issues of individual responsibility shall not affect state responsibility. This may, in a sense, be inevitable, in particular in the light of the changing nature of armed conflict: where force is increasingly used by irregular bands, by troops acting in cahoots with a state but not under its effective control, it becomes come much harder to hold state responsible, precisely because it may be difficult to attribute behavior to the state. Critics of war crimes proceedings often point out that such proceedings may end up in “victor’s justice”, or even “show trials”, possible at odds with the presumptions of innocence. In order to overcome the possible charge of politicization, the ICC Statute states unequivocally that everyone “shall be presumed innocent until proved guilty”: the onus rests on the prosecutor to prove the guilt of the accused, and guilt must be established “beyond a reasonable doubt”. Transboundary police cooperation Crime control has always been regarded as one of the essential tasks of the sovereign state, and is still very much a national affair. One reason why international crime control operates below the radar screen is that much of it is done by its immediate practitioners, rather than through high – level political initiatives. Another reason is that is highly dispersed, or decentralized. There are different treaties in place dealing with different topics, ranging from regimes on piracy and slavery and slave trade to cooperation to combat drugs trafficking or trade in endangered species, or small weapons. Some of the more recent emanations engage with money laundering and bribery, resulting sometimes in the outlawing of activities that used to be considered as more or less regular business practices. This recharacterization of activities (reframing) is not uncommon: activities that at some point were regarded as relatively benign come to be criminalized, usually under auspices of a leading state that sees its market leadership threatened. The drug trade poses a good example: during the 19th century, when the UK was the leading supplier of opium, it even engaged in a war in order to get China to open its markets. The drug trade provides a good example of how international crime control can be organized. The central legal instrument is the 1998 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The convention obliges the parties to criminalize a vast range of activities related to drugs, ranging from production and manufacture to sale, important and exportation, including the management and financing of these activities. The parties also agreed to treat the offences listed in the convention as extraditable offences, and must provide “the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings” for purposes which include taking evidence, executing searches and seizures, examining sites and providing information. Assistance may be refused on grounds of security or ordre public, but the refusal must be justified, and does not apply to bank secrecy. The convention also paves the way for further cooperation, for instance with respect to exchanging information about suspects, the secondment of liason officers or even the establishment of joint teams. It none the less clear that the convention provides law enforcement officers with an extensive set of instruments to combat the trafficking in drugs. Extradition One of the tools at the disposal of those engaged in international crime control is extradition: the transfer of an individual from one state to a state that aims to place the accused in trial. Extradition is typically a formalized process, involving either the diplomatic services of the state concerned or their judicial authorities, and base on an agreement. Extradition is strongly influenced by considerations of reciprocity. In related settings of a treaty on mutual legal assistance, the ICJ has held that each request should be assessed on its own terms. Even though they are often bilateral in form, many extradition treaties contain similar provisions. Thus, mosr are based on the so called principle of double criminality: individuals will only be extradited for offences that are prohibited in both states. Often, such treaties also contain the principle of specialty: the request for extradition and the subsequent prosecution need to concern the same allegations. Otherwise, one might request for extradition under false pretenses – ask for extradition for, say rape, and subsequently prosecute for treason. For much the same reason, it is International Law, Jan Klabbers Semestre 2° 75 regulations, as well as regulation concerning lifeboats and lifejackets, and addresses in particular the safety transport of dangerous products at sea. Dispute concerning the law of the sea have been of the staples of the ICJ’s work since 1945, with a prominent place in particular for cases involving maritime delimitation. The entry into force of UNCLOS marked the creation of a separate court – the International Tribunal for the Law of the Sea, located in Hamburg. Internal waters Over its internal waters, the territorial state exercise jurisdiction, and this includes, as a matter of principle, criminal jurisdiction. States usually tend to exercise their jurisdiction only when their interests are at stake. For minor offences taking place on board vessel lying in port or sailing on a river, they readily defer the jurisdiction of the flag state. Importantly, ships have no right to enter another state’s port or waters in the absence of a treaty provision to that effect, and while it is generally conceded that there is a presumption has not crystallized into a customary right. The one exception relates to ships in distress, but even this is limited to situations where human life is at risk – it not generally accepted for instance that this also extends to saving ship’s cargo. A different regime relates to internationalized waterways, typically canals that have been dug to facilitate shipping between different seas, such as the Suez Canal and the Panama Canal. These are open, depending on the precise terms of the treaty by which the regime was created, to ships of all nations. Territorial sea and contiguous zone Traditionally, the outer limit of the territorial sea was at three miles, to be measured from the “baseline”: this is the low-water line along the coast, as it is officially depicted in accepted charts. The current rule is more extensive: states may proclaim a maximum width of 12 miles, but are allowed to settle for less. The advantage of setting for less is that it may be cheaper, while state has exclusive rights within its territorial sea, with those rights come responsibilities. Most coastal states have opted for the twelve-mile zone. States typically adopt national legislation to this effect specifying the width by means of geographical coordinates, and notify the UN, which has a Division for Ocean Affairs and the Law of the Sea. There is one important exception: states have to allow the “innocent passage” of ships through their territorial waters, and this innocent passage is defined as all passage which “is not prejudicial to the peace, good order or security” of the coastal state. Certain activities are automatically deemed to be non – innocent: these include threats or use of force, but also exercises with weapons, unlawful loading or unloading of commodities, currencies or persons and fishing. In principle, the coastal state must not exercise either criminal or civil jurisdiction over ships availing themselves of the right of innocent passage. Due to geographical configurations, territorial waters also function as international straits (e.g. Strait of Gibraltar). In such a case, ships and aircraft enjoy a right of “transit passage”. This is similar to the right of innocent passage, but with the regular regime relating to the territorial sea, although ships and aircraft exercising transit passage are under an obligation to refrain from the threat or use of force. Transit passage are may not be suspended by the coastal state except in self-defense. States would sometimes get worried about ships dedicated to smugglimg lying just outside their territorial waters and enact so called “hovering laws”, especially during the 18th century. As a result, a custom arose to the effect that states could exercise some control over shipping outside their territorial waters properly speaking, and nowadays it is enforcement of customs, fiscal. Migration and sanitary laws. Exclusive economic zone (EEZ) The EEZ is relatively novel phenomenon, and comprises a band of water up to 200 miles off the baseline. States may exercise economic rights here: the concept arose predominantly to safeguard local fishing industries against fishing by distant-water Western states, and the first claims to this effect were made b African states in the early 1970s. by the late 1970s, Western states had started to claim exclusive fisheries zones, and these concepts would merge during the course of the International Law, Jan Klabbers Semestre 2° 76 negotiations leading to UNCLOS. By the 1980s, the EEZ had become part of customary international law, as confirmed by the ICJ. In the EEZ the coastal states has sovereign rights related to the natural resources present there, whether living or not. This applies to the seabed and subsoil as well as to the superjacent waters and to possible ancillary economic activities, such as the production of energy from water, currents and winds. Moreover, the coastal state has jurisdiction relating to the establishment and use of artificial islands and installations, as well as marine scientific research and the protection and preservation of the marine environment. Other states enjoy the traditional freedoms of the high seas, with one major exception: there is no freedom of fisheries in the EEZ. Since the EEZ usurped part of the high seas, landlocked states felt that the creation of EEZs has worked to their disadvantage: these landlocked states have a smaller share of the high seas available for fishing. Consequently, a complicated compromise was reached in UNCLOS: the coastal state is to determine the total amount of fish that may be caught in its EEZ, in the light of conservation and other concerns. This “total allowable catch” is then divided between the coastal state, determining its own capacity to harvest the natural resources, and other states, in the basis of bilateral or regional agreements. The same right appertains to so-called “geographically disadvantaged states” (i.e. states that have a small coastline, are bordering semi-enclosed seas or are otherwise dependent on the exploitation of someone else’s resources. The system does not seem to work very well: landlocked states typically have no fishing fleet, and the costs of building up fleet in order to partake of the possible surplus of other states probably far outweighs any benefits. Continental shelf The continental shelf came to prominence, during the 1940s, when states discovered oil and natural gas deposits and started to develop the technology to explore and exploit these. Following US President Truman’s proclamation, other states too claimed a continental shelf, and the concept rapidly crystallized into customary international law. It is now well settled that the continental shelf is to be considered as an extension of the state’s territory. The continental shelf may extend 200 miles off the coast, and like the EEZ, it too covers the seabed and subsoil (NOT the superjacent waters). An important difference though is that whereas the EEZ must be claimed, the continental shelf is generally accepted to belong to coastal states as prolongation of their territory, whether they want it or not, another relevant concern is that the feasibility of exploring and exploiting the continental shelf depends in part on geographical factors: some states have, by nature, a very limited one, whereas nature has endowed others with a vast shelf. The legal status of the continental shelf does not affect the status of the superjacent waters or air space, and the coastal state is under general obligation, while exercising its rights, not to interfere unjustifiably with navigation or other rights and freedoms enjoyed by other states, including the freedom to lay pipelines and cables. The coastal state has sovereign rights of exploration and exploitation of its continental shelf which, in practice mostly means that the coastal state can drill for oil and natural gas. It can do so by exclusion of all others, but may issue drilling licenses. Where the shelf extends beyond 200 miles, UNCLOS envisages a system of contributing to global welfare: these states are to contribute a small percentage of the surplus value (at most 7 %), to be distributed by the International Seabed Authority. High seas Traditionally, the regime recognizes four particular freedoms: - The freedom to navigate - Freedom of overflight - Freedom to lay submarine and cables - Freedom of fisheries Article 87 UNCLOS added two newer freedoms: International Law, Jan Klabbers Semestre 2° 77 - Freedom to construct artificial islands and other installations - Freedom of scientific research These freedoms are NOT unlimited: their exercise must take place with “due regard” for the interests of other states, and the high seas may only be used for peaceful purposes (even if it is generally accepted that military training exercises and even weapons testing are allowed). The key to understand regulation of high seas resides in the notion of flag-state jurisdiction. All vessels must be registered and thereby have a nationality, and on the high seas the flag state has exclusive jurisdiction over things happening on board. This covers not merely legislative jurisdiction, but enforcement jurisdiction as well. In case of collisions (the Lotus scenario), article 97 UNCLOS provides that penal measures may be instituted by flag states or by the state of nationality of the responsible individual. Certain activities are actively prohibited on the high seas: transport of slaves, illicit traffic in narcotics, unauthorized broadcasting and piracy. States have a general obligation to cooperate in combating these activities, and in addition have an obligation to cooperate “in the conservation and management of living resources”. It can easily be imagined that a vessel is engaged in illicit activities in a state’s maritime zone, and aims to flee from lical authorities: in such a casa, it would not be very useful if pursuit had to stop upon reaching the high seas; hence international law traditionally recognizes a rights of “hot pursuit”. “Hot pursuit” must commence in a state’s maritime zones and must continue without interruption (other wise it is no longer “hot”), but ceases when the vessel enters the territorial waters of its own states or a third state. It may only be exercised by warships or military aircraft, or ships otherwise clearly identifiable as governmental. Piracy: UNCLOS defines piracy as illegal acts of violence or detention, or depradation, committed for private ends by the crew of a private ship or aircraft against another private ship or aircraft on the highs seas or otherwise outside any state’s jurisdiction. The main characteristics of piracy is the absence of governmental authority or sanction, therefore, government ships by definition cannot engage in piracy, unless the crew revolts and turns against the government. Of great relevance is the jurisdictional point. It is generally accepted that all states can exercise universal jurisdiction over piracy, yet piracy itself is defined as taking place outside the reach of any particular state’s jurisdiction. Hence, acts of violence, detention or depradation of international law: they take place within a single state’s jurisdiction. The deep seabed In the late 19th century, it was discovered that the deep seabed was rich in certain metallic nodules, comprising valuable metals such as manganese, iron, nickel and cobalt. 1960s and 1970s the technology to mine these nodules has been developed and although start-up prohibitive, deep seabed mining started to look like a viable commercial activity. This would have the effect of depriving some states, in particular developing states, of their curret share of the world market, and thus a movement gathered force to establish a regime to share the spoils, all the more so since the deep seabed lies outside the jurisdiction of any state and, thus, no single state can claim the resources as belonging to it. This would take the form of Part XI of UNCLOS, establishing an intricate system to be managed by a newly created International Seabed Authority, set up as an international organization. All parties to UNCLOS are its member states, and it has a plenary body (Assembly), an executive body (Council), a secretariat, and two functional organs: a Finance Committee and a Legal and Technical Commission. The basis of the system is still that the deep seabed, ocean floor and subsoil thereof are to be considered the “common heritage of mankind”. No state can claim sovereign rights here: all rights relating to resources in the Area “are vested in mankind as a whole”, represented by the Authority and activities are to be carried out “for the benefit of mankind as a whole”. The basic idea is that deep seabed mining is to be carried out by private consortia, either alone or jointly with a possibly to be created Enterprise, under auspices of the Authority. Given the high costs of exploitation, those private consortia are, typically comprised of Western companies, International Law, Jan Klabbers Semestre 2° 80 Since states enjoy sovereignty over their air space, it follows that they need not tolerate intrusions of that air space. Civil aircraft found to be trespassing may be escorted and ordered to and. They may not, however, be shot: this is, it would seem, a rather absolute rule. Article 3bis of the Chicago Convention, in force since 1998: every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the live of persons on board and the safety of aircraft must not be endangered. Space law There is no agreement yet on the altitude where air space end and outer space begins but, for the time being, this is not considered to be problematic. None the less, at some point a boundary between the two will need to be established. As with territory generally, it may well be that the decisive criterion will be that of effective control, if so, then it may be expected that he boundary will move upward as time and technology progress. Outerspace is not subject to territorial sovereignty. In 1958 the General Assembly of the UN adopted the first important resolution on outer space. It suggested that mankind had a common interest in outer space, and established the principle that outer space should only be used for peaceful purposes. Three years later, it adopted another resolution, stating that outer space and celestial bodies were not subject to national appropriation, but were free for exploration and use by all states. These principles were cemented in 1963 resolution under the title Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, and still form the bedrock of the international law of outer space. Arguably the biggest legal problem that may arise is the question of liability. Who is responsible if a satellite comes crashing down, or if parts of a spacecraft land somewhere on earth? To this end, in 1972 a Liability Convention was concluded. The core of this convention is its article II: If damage occurs, the state concerned is liable, regardless of whether the damage was the result of an internationally wrongful act, or whether the launching state was at fault. This then marks a firm departure from the general principles of state responsibility in international law which, as noted earlier, include an internationally wrongful act as a necessary element. This strict liability regime may lead to claims for compensation for the damage incurred. Typically, claims are dealt with through diplomatic channels, but where no agreement between the disputing parties can be reached on the amount of compensation, the convention creates the possibility of setting up claims commission. The scope of article II of the Liability Convention is limited to damage on the surface of the earth and aircraft in flight. When damage is caused elsewhere, the convention prescribes fault liability: the launching state is only liable of it is at fault. If space objects are the project of two or more states, these will be held liable jointly and severally. Outer space is not only used for exploring new planets, but is also where satellites are in orbit. Some are used for “remote sensing” (tracking resources, early warning of pollution, possible also military activities), and quite a few are used fro broadcasting purposes. The use of satellites for remote sensing has raised the issue of whether the prior consent of the observed state is necessary: the idea that outer space is free to use would suggest that no consent is needed, but on the other hand, the existence of sovereignty over air and land would suggest that some consent might indeed be required. While there is no specific international organization devoted to outer space issues, the General Assembly, in 1959, created a Committee on the Peaceful Uses of Outer Space (CUPUOS). COPUOS discusses, as its name suggests, the peaceful uses of outer space and is, in a sense, the main body dealing with space law issues in general. A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight. International Law, Jan Klabbers Semestre 2° 81 Chapter 14 – Protecting the environment One of the more debated fields of international law in recent decades is generally considered to be a fairly novel branch of the law: the international legal protection of the environment. Among the reasons why this is hotly debated is that agreement between states is sometimes hard to find: there exist strong political cleavages not only over the extent to which the global environment is under threat, but also over what to do about it and, eventually, about who should pay for it. There is another factor which makes it difficult to achieve a coherent and effective body of international environmental law, and that is the circumstance that while international law is typically made between and for states, states themselves are rarely the direct culprits when it comes to pollution and degradation. Many of the world’s environmental problems are caused by the activities of companies and individuals. While government officials may be implicated in various ways, non the less the behavior that needs to be affected by international environmental law is predominantly the behavior of individuals and companies. This sets international environmental law apart from most other branches of international law, and makes international environmental law into something of a laboratory for international law generally. Law-makers and negotiators are forced to experiment with new mechanisms and techniques in order to achieve a semblance of regulation. Thus, it is in particular in the field of international environmental law that institutionalization is achieved by highly informal means. There is no single international organization dealing with the global environment: instead, there are regular meetings (or conferences) of the parties to multilateral agreements that perform many of the tasks otherwise ascribed to international organizations. Likewise, “compliance procedures” have been pioneered in the field of international environmental law as alternatives to courts and litigation. Early case – law Two important conferences are often singled out to mark the emergence of international environmental law. The first of these took place in Stockholm, in 1972, leading to the adoption of a set of principles the most relevant of which (article 21) holds that while states have a sovereign right to exploit their own resources, non the less they have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction”. The second opportune moment followed 20 years later, at the Rio Conference of 1992, which saw the birth of the notion of sustainable development, aiming to formulate a compromise between those favoring strict environmental regulation and those who suggest that environmental concerns need not sacrifice industrialization and development. Still the applicability of general international law to the environment has a long pedigree. International Law, Jan Klabbers Semestre 2° 82 An early case indicated how difficult it might be even to apply general international law to environmental issues: These cases together suggest that for a long time there was little general international law specifically geared towards protecting the environment. At best, there would be obligations of good neighborliness and due diligence based in the underling conception of a “community of interest” – paying some attention to the interests and rights of others while exercising one’s own rights. And this, so some would claim, is essentially still the case: international environmental law has fairly few hard and fast substantive rules, and instead relies on procedural notions about information, participation in decision-making, the usefulness of an environmental impact assessment etc. Pulp Mills The ICJ has rarely confronted with cases involving environmental issues. The most pertinent decision of the ICJ to date is its decision in Pulp Mills, a dispute between Uruguay and Argentina prompted by the planned establishment of two pulp mills in Uruguay. In 1975 Uruguay and Argentina had concluded a treaty on management of the boundary river between them, setting up an international organization (CARU) to that end. Part of this agreement entailed that neither of the two states would start large-scale projects that could affect the river and its natural environment without notifying the other party, and without taking some other procedural steps into account. CARU, moreover, specified further guidelines, and yet further details were agreed upon in separate agreements concluded in 2004 and 2005. In the end, the Court concluded that Uruguay had violated some of its procedural obligations, in particular by failing to inform CARU and Argentina before authorizing the planned works. Yet the Court held that Uruguay had not violated any substantive obligations, or rather, on most counts it found that there was insufficient evidence to reach this conclusion. This relates, in part, to the issue of the burden of proof: the Court held that this burden rested upon the claimant state, in casu Argentina, which had been unable to provide sufficient proof of environmental problems and the causali link with the pulp mills. This ascription of the burden of proof to Argentina proved controversial given the topic at hand. In a situation where the preservation of the environment is at stake it could be claimed, with considerable cogency, that the burden of proving non-harm should rest on those who wish to take steps that might endanger the environment. In their joint dissent judges Al-Khasawneh and Simma, arguing that it was unlikely that Uruguay’s violation of procedural obligations would have no bearing on its substantive obligations. As they suggested, in branches of the where the main concepts are ambiguous, “respect for procedural obligations assumes considerable importance and comes to the forefront as being an essential indicator of whether, in a concrete case, substantive obligations were or were not breached”. This seems highly plausible: since notions such as “sustainable development”, or “equitable and rational utilization of resources” have little discernible substantive content, they tend to manifest The operation of a Canadian factory caused noxious fumes to cross the border into the USA, raising questions about responsibility, compensation for damages and ultimately also whether the factory should cease to operate. The latter option was a stretch, but the panel did remark, foreshadowing Stockholm principle 21, that under international law, “no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. While the panel had been unable to find precedents in international law proper, it based itself to a large extent by analogy on decisions of the US Supreme Court involving cases between various of the states of the USA, satisfying itself that US law was “in conformity with the general rules of international law”. A final relevant precedent is the Lake Lanoux arbitration, between France and Spain of 1957. In this case, Spain had complained about French actions to divert the use of a boundary lake. Even though the French actions had been limited to the part of the lake that was on French territory, non the less this affected the possibilities for Spain to utilize the lake for irrigation purposes. Yet the panel held that France had done nothing wrong and had not violated any rule of international law. As long as France took Spain interest into account in a reasonable manner, there was little that it could be condemned for. International Law, Jan Klabbers Semestre 2° 85 Compliance procedures Many of the environmental agreements discussed have set up so called “compliance procedures”, and these may well be considered as integral parts of the institutionalization of international environmental law. Instead of holding a state responsible for breach, the state in question will be assisted in order to achieve compliance. The procedures tend to be non-adversarial in nature, tend to focus not on “breach” but on “non-compliance” and tend to result in making recommendations to the parties as to how to assist the state in non—compliance. Such procedures are set up under a specific environmental convention and substitute bureaucracy for law. It is the secretariat set up under the treaty concerned that starts proceedings, assessments are made by an implementation committee, after which the full meeting (or conference) of the parties decides whether there is a compliance problem, and what to do about it. Compliance procedures raise a host of legal questions. Some of these relate to the conduct of proceedings. Moreover, there may also be political drawbacks. Even though the law on state responsibility is not rigorously maintained, none the less the state found to be in non-compliance will be stigmatized, and it is hardly a coincidence that developing nations are far more often held to be in non-compliance than developed nations. As a result, there has been an increasing tendency to “juridify” the procedure, and to develop rules on amicus curiae briefs, legal representation, reasoned decision-making and strict time frames. Ironically though, the more the compliance procedure come to resemble regular judicial procedures, the less it will operate as originally intended, as a gentle wat to persuade parties to comply. International Law, Jan Klabbers Semestre 2° 86 Chapter 15 – The global economy It is probably fairly accurate to suggest that much of the international law deals with the global economy, in one way or another. Still, to some extent a discernible body of international economic law has risen, usually considered to revolve around a number of international organizations with specific tasks: monetary stability is provided by the IMF: developed baks and investment bakns may help generate the funds for large- scale projects; trade relations are governed by the WTO. In addition, in recent years’ investment rules have become increasingly important. But perhaps interestingly law has come to have a say on relations between private parties: there is a sense in which private international law has been subject to harmonization and unification by means of treaties. Private international law Private international law was said To address private relations (between individuals or companies) which just happened to have a transboundary element. This is now changing, and the change has be under way for quite some time. For this old decentralized model had a few drawbacks. It would be possible that in cases involving a sale from X to Y, one legal system would say that the national law of the seller should apply, whereas the other might say that the national law of the buyer should apply. More to the point perhaps, it was thought harmful to have such a patchwork of domestic rules governing international trade: surely world trade would be better off with a more harmonized set of rules. It turned out, domestic judges have a distinct tendency to find their own rules often applicable, with the result that private parties would be encouraged to go “forum – shopping”. All in all, many thought, already before WWII, that some degree of harmonization, perhaps even unification, would be advisable. Some of this goes back to the late 19th century, when the Hague Conference on Private International Law was first convened, in 1893. But it is fair to say that the most harmonization and unification has taken place since WWII. On several issues international treaties have been concluded. Some of these aim to address some of the practical problems involved in having judgments by local courts in cases involving foreign elements. Hence, at least in Europe several conventions on this sort of issue have been concluded, partly also under the impulse of the EU. Thus, under article 2 of the 1968 Brussels Convention, in most civil an commercial matters the point of departure shall be that “persons domiciled in Contracting Sate shall, whatever their nationality, be sued in the courts of the that State”. There are exceptions though: among these, a state need not recognize a foreign judgments if this goes against its own public order, and the judgment cannot be irreconcilable with a different judgment between the same parties in the state in which recognition is sought. On the global level, this drive to recognition of judgments has understandably been less successful, but one important convention must be mentioned: the 1958 New York Convention on the Recognition and Enforcement pf Foreign Arbitral Awards. While this deals with arbitral awards instead of judgments by regular courts, its scope is none the less truly remarkable. As with the Brussels Convention, though, there exception and again conflict with the public order is one of them. It could plausibly be maintained that the New York Convention has greatly facilitated international commercial arbitration, and therewith quite possibly international trade in general. Substantively, arguably the most important instrument is the 1980 UN Convention on Contracts for the International Sale of Goods (CISG). While the convention stops short of laying down a global contract statute, it does provide basic rights and obligations of sellers and buyers doing business in different countries. It is thus important to note that it does not replace domestic contract law: contracts between a Dutch buyer and seller in Holland remain governed by Dutch contract law; but where the Ditch seller finds a buyer in Morocco, the CISG may provide a useful service. International taxation Governments have been reluctant to give up their control over these matters. For what concerns taxation: there are many treaties on the avoidance of double taxation, and tax consultants can International Law, Jan Klabbers Semestre 2° 87 have a lucrative practice in advising clients on the different levels of taxation in different states, but it is decidedly rare to see taxation law treated as part of international law. The international law tax regime is built around two guiding principles: 1. Single tax principle – income should be taxed only once. It is still possible that if an individual has worked in two different countries during the fiscal year, she may have to pay taxes in both, but at least she will not be expected to pay twice on the same income. 2. Benefits principle – business income is to be taxed where the benefits are reaped. Hence, active business income is to be taxed at the source, whereas profits on investments (passive income) are t be taxed at the residence of the investor. It has also been claimed that some rules of international taxation have come to from part of customary international law, i.e. they are considered binding on states even without a treaty obligation. (e.g. jurisdiction to tax is generally based on residence or the principle of non- discrimination between citizens or companies of different states. Either way, give the existence of many bilateral tax treaties, and given the circumstance that many of these share similar contents, it seems plausible enough to argue that an international tax regime exists. Financial institutions In the aftermath of WWII, the international powers realized that economic relations were truly international, but often impeded by parochial nation states. Global peace would be possible if the economic system were placed under some form of global control or regulation, as opposed to local control. This provided a strong impetus for in particular the creation of the IMF. During the war, in 1944, a number of states met in Bretton Woods (in the USA), and decided to create a fund that could provide monetary stability. At the same time, it also became clear that the devastated nations of Europe could use all the helo they could get in trying to reconstruct themselves. For this purpose, Bretton Woods saw the parallel creation of an institution responsible for reconstruction and development: the World Bank. Both institutions work on the basis of capital poured into them by their member states, and the states that contribute the largest sums have the largest number of votes. This makes them unique: unlike most other international organizations, they operate on the basis of weighted voting rather than the “one state, one vote” principle. Both are also supposed to take their decisions on economic grounds alone. A strict interpretation of the injunction to base decisions on economic grounds alone may result in human rights violations, and that can hardly be considered acceptable. The IMF has as its main task to provide stability if states suffer from balance of payments problems, as such problems can easily spread across borders. In order to assist, the IMF is willing to lend money to states, provided those states make structural adjustments to their economies, i.e. follow the prescriptions developed by IMF economists. The conditions can reach far into the domestic economy. Its prescriptions can also be very risky: if the IMF gets it wrong, the state concerned may be in a far worse position that it was before it went to the IMF. While the IMF deals with monetary stability, the World Bank’s main task is to stimulate development. It does so by lending money for specific projects and it too places conditions on those loans, and those conditions inevitably end up reflecting the political and economic preferences of the Bank’s dominant member states. The World Bank has been highly creative: recognizing the potential of investing in environmental protection, it set up, in 1991, a Global Environmental Facility (which has in the meantime grown into separate international organization), while in response to complaints from civil society about the impact of some policies on large groups of people, the Bank set up an Inspection Panel to help ensure that it conforms to its own internal policies and rules. The general idea of stimulating project investment has found quite a following since the creation of the WB. This means that a large international bureaucracy exists to address development issues and, not unimportantly either, these banks are typically subject to credit ratings by credit rating agencies, providing these (private)agencies with lots of power. International Law, Jan Klabbers Semestre 2° 90 of expropriation or nationalization per se, they may amount to “indirect expropriation” or “regular takings”. Consequently, the investor may be awarded large sums in damages. This is not to say that expropriation, whether direct or indirect, is strictly prohibited. It is generally accepted that states may expropriate foreign property, but only if certain conditions are met: 1. The expropriation must not serve the personal interests of a local government official or be done for political reasons, but must instead serve a public purpose. 2. The expropriation must be non-discriminatory: it should not target the property of nationals of a single state leaving others, who are in the same position, untouched. 3. Expropriation should be compensated <= this has given rise to heated debates about the precise standard of compensation. An authoritative formula was proposed in the early 1940s by Cordell Hull, according to which compensation should be “prompt, adequate and effective”. Needless to say though, this did little to alleviate any issues, for two reasons.  A first is that coming from a Western nation, the formula was automatically suspect as biased; by contrast, many investment host states felt that the matter of compensation ought to be decided in accordance with their domestic law.  Second, even at face value, terms such as “prompt, adequate and effective” are themselves open ended and highly contextual. Investments disputes in their modern form are unlikely to come before the ICJ. - One reason for this is formal: one of the parties is a private company, and can therefore not appear before the ICJ. - Another reason is more substantive: investment law is highly specialized sub-discipline where there is usually a lot at stake, and investors in particular seem inclined to prefer swift and flexible proceedings. Arbitration might therefore be better geared towards suiting the interests of the parties than formal adjudication. This is also a political drawback though: those same individuals may often also represent clients before other panels, and may thus be inherently drawn to sympathize with claimant company’s position. §By contrast, whenever investment related disputes are brought to the ICJ, they typically involve not investments as such but a limited thereof (ex. Dispute between Argentina and Uruguay surrounding the setting up of a pulp mill near the boundary river). Alternatively, cases can still be brought to the ICJ on the basis of diplomatic protection. Economic “soft law” While global relations take place within the frameworks offered by organizations such as the WTO, the IMF and the World Bank, important parts are regulated on what has sometimes referred to as the “legally subliminal” level. Partly this is caused by the fact that international legal rules apply foremost to states, and thus it is inherently difficult to regulate the activities of actors other than states. Hence, it is often felt that the best one can hope for is the promulgation of non - binding norms. On the basis if this philosophy a code of conduct on Restrictive Business Practices was drafted under auspices of UNCTAD (UN Conference on Trade and Development) in 1980, while the UN has been the host, since the late 1990s, of the so called global compact, a scheme by which companies can voluntariy sign up to pledge their respect for core human rights, labour standards and environmental standards. Both initiatives aim to regulate competition between companies: they address the possibilities that trade liberalization between states may be undermined by collusion between companies, or by unfair competitive advantage. The very existence of such initiatives signifies that a global competition law regime (or antitrust regime) does not exist, although e.g. the US and EU anti-trust authorities engage in bilateral cooperation on a regular basis. Sometimes states aim to compensate by projecting their own competition laws on foreign actors; both US courts and the CJEU have upheld the position that anti – competitive behavior abroad may come within their purview if it affects competition in their respective markets. International Law, Jan Klabbers Semestre 2° 91 Formal organizations such as the Organization for Economic Cooperation and Development (OECD) play an important role in regulating the global economy, and the OECD makes widespread use of non legally binding instruments, although it also sponsors the conclusion of treaties, e.g. on a topic such as bribery. At least of equal relevance are activities of other, less formalized entities. Perhaps most visible is the annuel summit meeting of the most prosperous nations, first as G7, later as G8 and sometimes G20. Here, while there are some of the bigger developing countries (Brazil, Argentina, Indonesia), the poor are in no way represented. Meeting takes place behind closed doors, and while they may result in summit statements, they rarely, if at all, result in any legally enforceable instruments. Soft regulation, if that is the term to use, also prevails generally in the financial sector where, as the financial crisis of the 21st century suggests, there is little regulation and even less oversight. The Basel Committee on Banking Supervision, related to the Bank for International Settlements, regularly issues guidelines, but states are highly reluctant to see these given a binding form. Securities markets are regulated by the International Organization of Securities Commissions. In 1998, IOSCO agreed on a set of principles, generally considered as the “benchmarks of international regulation of securities markets”. In addition, inspired by common concerns about securities fraud, IOSCO sponsored the conclusion of a non binding MoU. While all these attempts may be legally non-binding, largely because government not only wish to collaborate but also compete with each other to attract business, non the les they are generally taken to be highly influential. Governance is exercised on the global level by entities composed largely or exclusively of industry representatives, by means of instruments of doubtful legal status. This implies that governments have relatively little to say about the contents of regulation, and that the accountability of the decision – makers is not very well developed: they are accountable neither to governments not parliaments nor before courts. Sometimes influence can also steam from a single state. Development and a new international economic order The system is strongly influenced by the major economic powers, and works to a large extent also to their benefit. In other words, developing nations face a constant struggle. Some initiatives have been made to alleviate their plight: in trade law, developing nations may have preferential access to Western markets, although often enough, where such initiatives have been made, they tend to be undercut by other arrangements. The difficult position of developing nations gave rise, during the 1960s and 1970s, to repeated calls for the establishment of a New International Economic Order, which would be less titled to the benefit of the Western world and more receptive to the needs of developing nations – in short, it was a call for a more just international economic order, influenced also by new theorizing about how underdevelopment had come about to begin with. Thid World economists and social scientists, among others, had begun to draw attention to the connections between Western development and Southern underdevelopment, arguing that the economies were so strongly related that development of the West had only be possible on the basis of the economic exploitation of the South, whether in the form of colonialism or by other means. UN General Assembly in particular was instrumental in the adoption of many resolutions outlining the contours of a New International Economic Order. However, since the General Assembly lacks the legal power to issue binding instruments, much of this remained on the level of ideal, and had a hard time becoming reality. Nowadays, talk of such a New International Economic Order is largely considered dead and buried. Development as such has remained on the global political agenda. Sometimes this has taken the form of advocating a right to development, but this has never quite materialized, if only because even if it were clear (which is not) who would be a right – holder, it remains unclear on whom any corresponding obligation would rest, and how the right could be made effective. This latter point in particular is crucial: while most people will agree that development is a thing, there exist fundamental political divisions on how best achieve it. Some might argue that development is best International Law, Jan Klabbers Semestre 2° 92 achieved by cooping developed nations into the global economy. Others, including many developing nations themselves, have sometimes felt that a policy import substitution and economic autarchy might be more effective. This would warrant a form of protectionism rather than playing along on the global market. Either eay, the grand ambitious of a New International Economic Order have been left behind. Currently, the best-know effort to stimulate development is embedded in the so-called Millennium Development Goals, a set of targets adopted by the UN General Assembly in 2000. The targets include the eradication of extreme poverty and hunger, the reduction of child mortality, environmental sustainability etc. As this list suggests, the idea is no longer to focus solely on the development of states, but rather on the position of individuals within developing countries. The legitimacy of the current global economic order is taken for granted: the Millennium Development Goals, important as they are, work within the current system, without questioning the system itself, they leave the basic structures of international economic law intact. Conclusion International law provides the underlying framework which helps to facilitate the conduct of trade and investment, and secures the global market or in particular the global market in goods and services. It is equally important to realize, though, that some parts of the regulation of the global economy are self-consciously kept far away from international law, in two ways: 1. First, when it comes to the free movement of capital, international law does not have much to say: it protects investments, but supervision of banking and securities is left to the industries concerned, and often on the basis of documents of rather nebulous legal status. 2. Second, the free movement of individuals is typically restrained by domestic law: international law does not have all that much to offer to workers, migrants or the destitute trying to find a better future. The net result is that relevant sectors of the global economy are subject to governance without much democratic input, without much accountability and without much of the tempering effect that basic human rights norms can exercise. International Law, Jan Klabbers Semestre 2° 95 though, traditionally the decision to award direct effect rested with the agencies (courts, administrative bodies) applying the law. Still, since the PCIJ held in Jurisdiction of the Courts of Danzing that the finding of direct effect depends on the intentions of the parties, it follows that the parties are at liberty to make their intentions clear by issuing declaration to the effect that the treaty as whole shall not have direct effect. This has been employed by the three big trading blcs when ratifying the WTO Agreement: the USA, the EU and Japan all declared that WTO law should not be considered directly effective in their domestic legal orders. In other cases, non selfexecuting declarations may owe more to consideration of integrity of the domestic legal order. In particular the USA has issued some declarations when ratifying international human rights instruments: the inspiration behind these resides mostly in the circumstances that the USA, while willing to accept an international commitment to respect human rights, is unwilling to see the contents of US law changed through the application of international law directly by the US courts. This highlights what is often considered as the politically most problematic issue relating to the direct effect of international law: where the international law can directly enter the domestic legal order, it has the potential to set aside democratically enacted legislation in that legal order. This need not always be the case: a state can enact conflict rule to the effect that “in case of conflict between a domestic rule and in international rule, the domestic rule shall prevail”, but doing so automatically creates a suspicion that the state reneges on its international commitment. Dualist states are free from such concerns, as no immediate conflict between an international rule and a domestic rule can, strictly speaking, arise: the two are considered separate spheres. What will plague dualist states, however, is a possible discrepancy between their domestic law and their international commitments. Since local courts are not capable of remedying the situation, dualist states may more often find themselves before international tribunals. Some confusion exists between the idea of direct effect and the idea of a “private cause of action”: a treaty provision which creates a private cause of action is one that a litigant can rely on when starting litigation. This is a narrow category where a rights has been created, directly in a treaty, for the benefit of individuals. Thus, the right to be free from torture would qualify. Direct effect, however, would seem to be a broader notion, encompassing not only rights created to directly benefit individuals, but also enabling the individual to rely on international law in her defense. Thus, in a monist state, an individual accused of violating domestic law may possible rely on contrary international law, forcing the local judge to test the local legislation against international rule. If the international rule can be seen as directly effective, then the judge in the typical monist state would be able to apply the international rule, even without the international rule providing a private cause of action. Put differently, direct effect is the overarching category, but may not always be sufficient to start a litigation unless the litigant can also point to a specific remedy or a corresponding obligation or liability resting on another party, it is these that specify the existence of a private cause of action. Direct effect is most often discussed in connection with provisions of treaties and provisions laid down in binding decisions of international organizations: indeed, it is not all that easy to think of the direct effect of customary international law, at least not while remaining faithful to the PCIJ’s opinion in Jurisdiction of the courts of Danzing, with its emphasis on the intentions of the parties. After all, customary law is not the result of any legislative or quasi-legislative intention: states make customary law through the aggregate of their activities, and while those activities themselves may be intentional, the resulting rule is not intentional in quite the same way. Consequently, it becomes incoherent to speak of the intention behind a customary rule to grant direct effect. Incorporating international law Instead of utilizing direct effect, dualist states tend to insist on transformation of international law into rules recognized as valid in the domestic legal order. This transformation can be done in several ways. - One way is to rewrite existing domestic law in order to do justice to a new treaty. In particular with large treaties covering much ground, this may take much time and effort. International Law, Jan Klabbers Semestre 2° 96 Howvere, this is time consuming and may be risky as well: it is , after all, quite possible for the local implementing legislation to depart from the treaty text, if only because the translation may not fully match up to the authentic version of the treaty. - The other way is what is referred to as “in blanco incorporation”: the legislator simply adopts a law to which the treaty would be annexed. The law then provides that the treaty, as annexed, shall have the force of law within the domestic legal order. But, this is not without problems either. Again there is the issue of the linguistic compatibility: if the annexed treaty is a translation, then it may depart from the authentic version, yet for purposes of legal certainty, it is arguable that the translated version should prevail in domestic law. Otherwise the legal subjects might not be aware exactly what is expected of them and what their exact rights are. Another issue that may arise is the question of hierarchy. While local practices may vary, treaties may be incorporated either by formal legislation, or by administrative decree, or by a combination of the two. In case of incorporation by decree, however, it may well be that domestic law ascribes a lower status of administrative acts (and therewith to the treaty thus incorporated) that to formal laws, the result being that the treaty would remain subservient to domestic law. Similar problems may arise in nominally monist states. To hold that treaties form part of the domestic legal order upon ratification or entry into force is not yet to determine the formal rank of the treaty: it may be of the same rank as regular legislation, but also lower or of higher rank than regular legislation or even higher that the domestic constitution. Here local practices may differ considerably. On the other hand, in dualist states even non-incorporated treaties can engender some legal effect. It is not uncommon, for courts to take such treaties into account when interpreting domestic law, at least in situation where domestic law is ambiguous or unclear. The limited relevance of the monism versus dualism debate also becomes clear when considering that states sometimes enact specific legislation to give effect to international law by creating a private cause of action. The special case of the EU EU law is generally considered to occupy a specific place, largely for two reasons: 1. First, it is generally acknowledged, following the case-law of the CJEU, that the reception of EU law into the domestic laws of the EU’s member states follows from EU law, rather than from domestic law. While the EU is based on a set of treaties and thus, from that perspective, is but a species of international law, the CJEU has held that domestic constitutional law cannot have a bearing on how the member states treat EU law. 2. The EU occupies a special place because the EU itself comprises a distinct legal order, thereby giving rise to the question of how international law is received in the EU’s legal order. Indeed, this even raises the further question of whether the EU can function as an intermediary. The leading case on the effect of EU law in the EU’s member states is the classic Van Gend &Loos case. The Court derived this conclusion from a number of considerations:  It found that the aim of the EU treaty was to reach beyond a mere inter- state agreement, as evidenced by the existence of a judicial procedure to guarantee cooperation between domestic courts and the CJEU, as Van Gend & Loos case At issue was whether the Netherlands, in raising a tariff on a product imported from Germany, had violated article 12 of the EEC Treaty (TCE). The Netherlands held that this question was outside the reach of the CJEU as, in those days, the direct effect vel non of treaty commitments in the Dutch legal order was though to depend on the Dutch Constitution, and under Dutch constitutional law as it stood at the time, it was doubtful whether article 12 would be directly effective. The Court disagreed, suggesting that the question related to the interpretation of article 12 rather than to the application of international law by domestic court, and therewith fell within the Court’s jurisdiction. International Law, Jan Klabbers Semestre 2° 97 well as the reference in the preamble to the peoples of Europe in addition to the reference to governments.  Mostly though the CJEU seemed concerned with the effectiveness of EU law: the integrity of EU law was compromised if EU law were directly effective in some member states but not in others. Hence, the CJEU formulated the point of principle that the effect of EU law in domestic legal orders of the EU’s member states had to stem from EU law. If the EU were to succeed, it would need to have identical effects across all member states. In its case -law, the CJEU has acknowledged that a number of provisions of the TFEU have direct effect in the domestic law of the member states, even where such provisions are negatively worded. In addition, regulations adopted by the Union are by their very definition “directly applicable” in member state law, to the extent that member states may not take measures to implement them, for fear that implementing measures may come to depart from the original regulation. These therewith function much like domestic legislation, the only difference being that their source is not the domestic legislator. The EU also forms a legal order of its own, often said to be located somewhere between domestic law and international law. It follows that the question arises of how international law is received in the EU legal order. While the EU internally is decidedly monist with respect to the effect of international law within the EU legal order the EU has adopted a position far closer to dualism. The EU treaties remain silent on the reception of international law: consequently, it has been left to the CJEU to formulate the basic position concerning the reception of international law – the CJEU functions as veritable gate-keeper. The basic position is that the CJEU is reluctant to grant direct effect to the provisions of treaties to which the EU is a party, with one exception. This concerns the broad category of association agreements, i.e. agreements by means of which the EU aims to “export” its own law to associated states, either to prepare them for future membership or to substitute of possible membership. With other treaties, the CJEU has been far less keen: it has been far less interested in “importing” international law. This is most famously the case with WTO law. Towards a new dualism? Monism after all allows for the relatively easy importation of international law into domestic legal order. Dualism, by contrast, was associated with sovereignty and with narrow parochialism, halting the spread of liberal human rights law. From the early 1990s onwards there has been something of a reappraisal of dualism. Writing independently, two leading international lawyers published studies discussing the policy arguments on favor of and against monism and dualism. John Jackson provided an important set of functional policy arguments as to why dualism might be of use: dualism may help states to protect the domestic legislative process by isolating it from international interference. States may wish to further define in domestic legislation a term left ambiguous in the treaty provision and they may wish to match the treaty provision more closely to local circumstances. States may wish to keep the option of reciprocity open: with respect to strictly dualist state, the monist state may feel that there is a certain asymmetry in their relations if their citizens can go to domestic court to have their rights enforced, but the citizens of other states cannot. Finally, states which have confidence in their own regulatory system may be reluctant to see it being overruled by imported international law, and therefore be less keen on joining international regimes to begin with. Accordingly, Jackson ended up advocating a prudent dualism. Thomas Buergenthal, still adhered to a temperate monism but he opened the door for a rejuvenation of dualism by suggesting that when states create directly effective provisions, they actually do two things at once: - They assumed and obligation relating to the substance of a rights - An assume a separate obligation relating to the manner of its domestic enforcement.